SC practice and procedure act: CJP hints at completing hearing today

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

The proceedings of the case are being 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

At the outset of the hearing, President Supreme Court Bar, Abid Zuberi in his arguments before the full court said only the SC can formulate the rules regarding Practices and Procedures, the Parliament does not have this authority, he added.

Subject to in the constitution does not indicate that the Parliament will do legislation for the apex court, Zuberi said.

Can the rules formulated by the SC using constitutional powers be overturned? Justice Ijazul Ahsan asked Zuberi. No, the Parliament does not have the right to legislation after this, the respondent said.

At one point, CJP Isa remarked, “The day we hear this case, the weeks we hear this case, our institution exceeds our disposal. The day we don’t, our disposal exceeds our execution. If you think this is a never-ending hearing, this is the last day of the hearing.”

He urged the SCBA president to continue his arguments in the case, telling him to move on to the next point. He expressed displeasure with Zuberi submitting documents to the court during the hearing.

“The way in which Article 184(3) is being used, was it correct? […] If we strike down this law, so will it be correct if I keep using [Article 184(3)] in the same way as before?” Justice Isa asked Zuberi.

Zuberi said that Article 184(3) was used incorrectly in the past and several questions had been raised about it. He said whether it was used incorrectly or incorrectly, it had to be examined who had the competence or jurisdiction to rectify it.

CJP Justice Qazi Faez Isa had questioned how the Supreme Court (Practice and Procedure) Act 2023 could curtail the powers of the apex court. CJP Isa had regretted how vesting of authority in an individual’s hands had destroyed the country.

Imtiaz Siddiqui-CJP heated arguments 

Imtiaz Siddiqui, the senior lawyer of one of the respondents in the case, exchanged heated arguments with the CJP for giving a rostrum to the AGP before him.

Siddiqui said, My Lord, you said to give me a chance for arguments before the AGP. He also complained about the ‘behavior’ of the CJP.

Justice Isa asked where in the order is written that you will get the time for arguments before the AGP. The top judge scolded Siddiqui for asking to review his [CJP] to ‘review’ his treatment.

There is a way and behavior to talk in the SC, the CJP remarked.

Previous hearing

CJP Isa initiated the last 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 about 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.

Read more: Government to review law clipping CJP’s powers, AGP tells SC

“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.

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.

SC practice and procedure 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.