A full court bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa has postponed the hearing of petitions contesting the SC (Practise and Procedure) Act to tomorrow (October 10) at 11 a.m.
SC adjourns hearing till tomorrow: State-run PTV is live-streaming the court case’s proceedings. 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 taking over as chief justice, CJP Isa ordered that the hearing be webcast live and impliedly vacated the suspension of the SC Practise and ProceÂdure Act’s enforcement as of April 13.
The hearing today
Abid Zuberi, President of the Supreme Court Bar, stated in his opening remarks before the whole court that only the SC has the jurisdiction to create regulations for practises and procedures. He noted that the Parliament does not.
According to Zuberi, the phrase “subject to” in the constitution does not mean that the Parliament would pass laws for the supreme court.
Judge Ijazul Ahsan questioned Zuberi about whether the regulations created by the Supreme Court under its constitutional authority can be changed. The reply responded, “No, the Parliament does not have the right to legislation after this.
The day we hear this case, the weeks we hear this case, our institution exceeds our capacity, CJP Isa once observed. When we don’t, our execution is less effective than our disposal. This is the last day of the hearing, so stop thinking that it goes on forever.
He advised the SCBA president to move on to the following point as he pleaded with him to continue. During the hearing, he voiced his displeasure with Zuberi’s submission of documents to the court.
“Was it appropriate to apply Article 184(3) in the manner in which it was used? […] Will it be correct if I continue to use [Article 184(3)] in the same manner if we overturn this law? Asking Zuberi was Justice Isa.
According to Zuberi, there have been instances of misapplication of Article 184(3) in the past, leading to various inquiries. He argued that regardless of whether it was use improperly, an investigation is need to determine the competent authority responsible for rectifying it.
Tempers flared between Imtiaz Siddiqui and CJP.
CJP Justice Qazi Faez Isa raised concerns about how the Supreme Court (Practice and Procedure) Act 2023 could potentially limit the authority of the supreme court. CJP Isa grieved how the concentration of power in one person’s hands had ruined the nation.
Imtiaz Siddiqui, the lead attorney for one of the respondents in the case, heatedly debated the CJP for allowing the AGP to speak before him.
My Lord, you told me to have an opportunity to argue before the AGP, Siddiqui remarked. He also took issue with the CJP’s “behaviour.”
Where in the order does it say that you would receive the time for arguments before the AGP, Justice Isa questioned. The senior judge reprimanded Siddiqui for requesting the chief justice to “review” his treatment.
The CJP said, “There is a way and behaviour to talk in the SC.”
Earlier hearing
CJP Isa opened the last session by outlining the consequences of the law, particularly emphasizing its impact on the chief justice and the two senior-most judges of the supreme court. He voiced his concern over the concentration of authority among senior judges.
“On the one hand, the CJP’s authority is being curtailed, if not completely eliminated. On the other hand, senior judges are receiving the same authority,” he observed.
The CJP also emphasised how the law will affect upcoming chief justices and senior judges.
Chief Justice Isa advised the attorneys present to concentrate their arguments on the issues that were crucial to the case throughout the hearing. Justice Isa encouraged attorneys to file a thorough response to the court if they wished to elaborate on their points because he wanted to wrap up the matter as soon as possible due to the backlog of cases at the Supreme Court.
“We want to try and wrap this up today.”
The opening paragraph of the Act, according to attorney Akram Chaudhry, provided the foundation for his claims. He said that it implied the statute was designed with a specific goal in mind.
To clarify if this was specifically mentioned in the law or if it was the lawyer’s interpretation, Chief Justice Isa intervened. Justice Isa instructed the lawyer to share his impressions rather than assuming the law’s intent and discouraged inserting phrases into the statute that did not exist.
“Let’s avoid including words in a law that don’t exist. If you feel that way, let me know,” he said.
Before making his case, the attorney reviewed Section 3 of the Act, which establishes a bench composed of judges to hear cases with public interest. He said that the clause violated the law, refocusing attention on how the Act would affect judicial independence.
He further asserted that the reforms to empowerment rights, present under Article 183 of the Constitution, which allow the SC to hear public interest lawsuits, require a two-thirds majority in Parliament for implementation.
“In a parliamentary system, the executive branch and the legislature function as one entity, as stated in the Constitution. They are connected to one another, he remarked.
The passage of the measure from a “truncated” Parliament, he continued, now presents constitutional and legitimacy concerns.
The attorney once asserted that the Act’s passage “totally denies the Constitution itself.” This implies that the Supreme Court’s function is to declare a statute to be extra vires, or outside the scope of the Constitution’s prerogatives, he added.
“Legal Debate: Justices Discuss Legislative Competence and Constitutionality of SC Act”
Justice Muneeb Akhtar stated that the issue at stake was one of legislative competence during the hearing.
Justice Akhtar explained that in constitutional law, the term “fraud on the constitution” is use when the legislature attempts to enact a law that exceeds its authority.
Additionally, he looked at Section 7 of the SC Act, which describes the schedule for applications for temporary relief, and raised concerns about the Parliament’s ability to prescribe the SC’s careful operational procedures.
CJP Isa did draw attention to the repetition of arguments at one point and the need to wrap up the matter by day’s end.
The Act, in essence, involves a constitutional modification, necessitating a method that Parliament has not adopted, compromising the Act’s formation’s legality, said Justice Ijazul Ahsan.
According to Justice Athar Minallah, the law merely safeguards and ensures access to justice, including limitations on the chief justice’s authority.
At this point, Chaudhry stated that legislation had an impact on the judiciary’s independence and also totally regulated the internal operations of the court. He claimed that “Parliament had gone beyond its authority.”
A law
The law restricts the Chief Justice of Pakistan’s ability to form benches on his own and to take suo motu notice. The three-member committee, consisting of the chief justice and the two most senior judges of the court, is grante the authority to take notice suo motu.
The SC practise and procedure statute, which also includes the ability to appeal, strives to establish open proceedings in the supreme court.
After President Arif Alvi had returned the bill, the PDM government had passed it in the joint session of parliament on April 10.