SC adjourns hearing on law clipping CJP's powers till October 9

ISLAMABAD: A full court bench — headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa — on Tuesday adjourned the hearing of petitions challenging the SC (Practice and Procedure) Act till October 9, ARY News reported.

The proceedings of the case were broadcast live by state-run PTV.

Headed by CJP Isa, the bench comprised Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.

After assuming charge as the chief justice, CJP Isa had ordered the hearing to be live streamed and had implicitly vacated the April 13 suspension of the enforcement of the SC Practice and Proce­dure Act.

Today’s hearing

CJP Isa initiated the hearing by discussing the implications of the law, especially its impact on the chief justice and the two senior-most judges of the apex court. He expressed concern on the centralization of powers within senior judges.

“On one hand, the CJP’s powers, if not being limited, are being reduced. On the other, the same powers are being distributed among senior judges,” he said.

The CJP also highlighted the law’s implications for future chief justices and senior judges.

During the hearing, Chief Justice Isa urged the lawyers present to focus their arguments on the points relevant to the case. With a backlog of cases in the Supreme Court, Justice Isa hoped to conclude the case as quickly as possible, encouraging lawyers to submit a detailed response to the court if they wished to expand on their arguments.

“We want to try to conclude [the case] today.”

Lawyer Akram Chaudhry kickstarted his arguments by examining the opening paragraph of the Act, positing that it suggested the law was enacted for a specific purpose.

However, Chief Justice Isa interjected to clarify whether this was explicitly stated in the law or if it was the lawyer’s interpretation. Justice Isa discouraged putting words into the statute that did not exist and advised the attorney to divulge his impressions rather than assuming the law’s intent.

“Let’s not put words in a statute which don’t exist. If that is your impression, then say so,” he remarked.

The lawyer preceded his argument by exploring Section 3 of the Act, in which a committee of judges would constitute a bench to handle matters of public importance. He argued that the clause encroached on the legal framework, gathering renewed attention on the Act’s implications for judicial independence.

He further argued the amendments to empowerment rights that enable the SC to entertain public interest litigation, present under Article 183 of the Constitution, can only be executed with a two-thirds majority in Parliament.

“In a parliamentary system, parliament and the executive are one, the same phenomenon in the Constitution. They have a nexus amongst themselves,” he said.

He further said that the law’s passage from a “truncated” Parliament now raises constitutional and legitimacy issues.

At one point, the lawyer argued that the enactment of the Act “totally denies the Constitution itself”. “This suggests that the Supreme Court’s role is to declare the law as ultra vires – beyond the powers allowable under the Constitution,” he said.

During the hearing, Justice Muneeb Akhtar said that the question at hand was of legislative competence.

Justice Akhtar said that the technical term used in constitutional law, for when the legislature tries to make a law beyond its competence, was a “fraud on the constitution”.

He also examined Section 7 of the SC Act, which outlines the timeline of interim relief applications, and questions were raised regarding the Parliament’s authority in dictating the SC’s meticulous operational processes.

At one point, however, CJP Isa highlighted the repetition of arguments, and the deadline to conclude the case at the end of the day.

Justice Ijazul Ahsan then went on to say that the Act essentially constitutes a constitutional amendment and thus requires a procedure that Parliament has not implemented, undermining the validity of the Act’s formation.

Justice Athar Minallah said that in his opinion, the law simply secures and ensures access to justice, including controls on the chief justice’s power.

At this, Chaudhry said that legislation affected the independence of the judiciary and also completely regulated the internal workings of the court. “Parliament had acted beyond its mandate,” he said.

Previous hearing

At the last hearing, the top court had sought replies from all parties by September 25.

The Supreme Court accepted all the pleas seeking the formation of the full court to hear the case. CJP Qazi Faez Isa remarked there were three petitions for the constitution of the full court and the best solution to address this important issue.

The federal government in its response submitted to the SC, urged the apex court to dismiss all the pleas challenging SC Practice and Procedure Act. “Pleas against the law passed by Parliament are inadmissible.”

Parliament has the right to legislation under Article 191 of the Constitution of Pakistan, the written reply of the government read and added that no one can bar the Parliament from legislation.

The petitioner’s lawyer, Khawaja Tariq Rahim in his arguments said the Parliament cannot interfere in SC’s matters. To, this the CJP remarked, “Whatever you are saying is not mentioned in the act.”

Khawaja sahab! don’t go in the past, read the act which you have challenged, CJP Isa asked.

Justice Athar Minallah remarked Khawaja sahab are you in favour of giving all the powers to a single personality? Whatever happened in the past, do you want it to continue? he added.

During the hearing, the CJP advised Khawaja Tariq Rahim not to respond to the questions raised by him and his fellow judges abruptly. “I’m trying to make your life easy, note down the queries and respond in detail,” the top judge remarked and added you can give written responses too.

“Do you want to make CJP unaccountable,” CJP Isa asked the petitioner.

Furthermore, the CJP chided counsel Rahim for referring to his “personal opinion” during the arguments and asked him to stick to the law.

“What is this ‘personal opinion’, please talk about the law,” CJP Qazi Faez Isa remarked.

He further asked: “Whose right can be taken away by this law?”

“Rs6.5 billion dollars were lost due to the court’s decision in the Reko Diq case, As chief justice, I do not want such authority,” he remarked.

Justice Muneeb Akhtar raised the question that if there was administrative authority, had the parliament abolished judicial authority?

Justice Musarat Hilali asked if the powers of the CJP had been clipped by this legislation. Justice Mandokhel inquired whether the powers of the chief justice had been withdrawn and the powers of the Supreme Court had been curbed.

Justice Athar Minallah asked Khawaja Rahim if agreed that chief justice was master of the roster.

The law

The legislation limits the powers of the Chief Justice of Pakistan to take suo motu notice and to constitute benches on his own. It gives the power of taking suo motu notice to a three-member committee comprising the chief justice and two senior most judges of the court.

The act also aims to have transparent proceedings in the apex court and includes the right to appeal.

The PDM government had on April 10 passed the bill in the joint session of parliament after President Arif Alvi had returned the bill.