Home Latest News Full Court Hearing on Practice and Procedure Act Adjourned till Oct. 3

Full Court Hearing on Practice and Procedure Act Adjourned till Oct. 3

In nationally televised hearing, clear divisions emerge between judges of Supreme Court on Parliament’s ‘authority’ to legislate limits to CJP’s powers

by Staff Report

Following Chief Justice of Pakistan (CJP) Qazi Faez Isa ordering the live broadcast of the full court hearing into enforcement of the Supreme Court (Practice & Procedure) Act, 2023 on Monday, the entire nation saw clear divisions between judges over Parliament’s “authority” to legislate limits to the CJP’s powers of bench formation and taking suo motu notice.

The hearing, spanning roughly 7 hours with two breaks, marked the first time in Pakistan’s history that court proceedings were broadcast live, granting the general public a rare glimpse into the workings of the judiciary. Amidst cross-talk between judges, the CJP repeatedly observed that he did not want “unfettered” powers, questioning petitioners why they felt the need to argue on behalf of his office when he had never hired them to do so.

Adjourning proceeding until Oct. 3 after the petitioners required more time to address questions raised by the judges, the CJP also observed that he would consult with two senior-most judges—Sardar Tariq Masood and Ijazul Ahsan—regarding the formation of benches until the next hearing. This is a key clause of the law, indicating that while an explicit order to the effect was not issued, the stay on the implementation of the law had been vacated.

During the hearing, judges primarily focused on what “fundamental rights” of citizens had been stripped away by the law, as they dug into whether the petitions filed under Article 184(3) were maintainable. It emerged, fairly quickly, that the petitioners’ lawyers—Khawaja Tariq Rahim and Imtiaz Siddiqui—were ill-prepared for the grilling of the full court, as judges repeatedly interrupted them to raise questions that they were unable to satisfactorily address.

Questioning Rahim, Justice Ayesha Malik asked what right of appeal existed under the new law if a full court heard a case. Justice Mandokhail, meanwhile, questioned how Parliament lacked the authority to legislate in the context of Article 191 of the Constitution. “What I understand of your point is that if all this is done by the full court, then it is acceptable; If Parliament does this, then it is wrong,” observed Justice Mansoor Ali Shah. Justice Athar Minallah, similarly, asked whether the lawyer was “satisfied” if the chief justice had unlimited power to form a bench? The judges also repeatedly censured the lawyer against giving his “personal advice,” and urged him to cite laws that supported his arguments.

At times, the hearing appeared to devolve into a debate between the judges on the competency of Parliament to legislate. The primary voice questioning whether lawmakers had the authority to legislate was of Justice Munib Akhtar, who appeared to take umbrage at the CJP lamenting the “waste of taxpayers’ money” that the case entailed. He also questioned the authority of Parliament to “interfere” in matters of the judiciary.

Addressing Attorney General of Pakistan (AGP) Mansoor Awan, the CJP remarked that “we should not indulge in conjectures or opinion rather focus on the law.” Lamenting that the backlog of cases pending before the Supreme Court had swelled to 57,000, he said the appropriate forum for such debates was the high courts, not the Supreme Court. Observing that instead of judges persuading the counsel, the lawyers should persuade the judges, he said 150 cases had been added to the backlog while the hearing was ongoing and a lengthy delay risked the collapse of judicial system.

Justice Isa described as a “Himalayan mistake” the three-judge taking up of the Reko Diq case under Article 184(3), noting it had cost Pakistan $6.5 billion in penalties. “Rather than putting the interest of the country at peril, I would prefer putting my powers as the CJP at the feet of the people,” he said. “What is the harm in accepting our mistakes,” he observed, noting the apex court had in the past validated military interventions. “I have taken an oath to protect the Constitution and the law and not court judgements especially which were given while validating military interventions,” he said. “We should think about the future of the country,” he added.

To this, Justice Akhtar remarked that he was not indulging in conjecture or theoretical discussions but rather trying to understand whether if Parliament were to make a law in future vesting entire authority in the CJP, then would it also fall within the capacity of Parliament.

There was also much debate on cases heard and decided while the law’s implementation was suspended. Justice Masood asked the AGP what the impact on such orders would be if the law was declared valid. To this, the AGP said such orders should be considered past and closed transactions.

“Can we give retrospective effect if the court upheld the law by saying all benches that heard the respective cases after the passage of the law were not properly constituted since the three-judge committee did not approve their composition to hear such matters,” questioned the CJP. “If the cases stand decided, they stand decided,” the AGP replied, arguing that the law did not undermine the independence of the judiciary or the fundamental rights of citizens.

Justice Athar Minallah, meanwhile, noted that if the law’s enactment were upheld, any aggrieved party could get a right of appeal even in suo motu cases.

The hearing was heard by the full court of the Supreme Court: CJP Qazi Faez Isa and Justices Sardar Tariq Masood, Ijazul Ahsan, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Aminuddin Khan, Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhel, Muhammad Ali Mazhar, Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Musarrat Hilali.

Related Articles

Leave a Comment