File photo. Farooq Naeem—AFP
An eight-member bench of the Supreme Court on Monday resumed hearings into pleas challenging The Supreme Court (Practice and Procedure) Act, 2023, which seeks to curtail the chief justice’s powers of independently taking suo motu notice.
Headed by CJP Umar Ata Bandial, the bench comprises Justices Ijazul Ahsan, Munib Akhtar, Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi and Shahid Waheed. In its last hearing, the CJP had rejected a bid by the attorney general for Pakistan (AGP) to vacate a stay order against the implementation of the act and had said the case would continue until all stakeholders had been heard. He had also directed the submission of the parliamentary record on debates pertaining to the act, saying it would held the court better understand the reasoning behind the legislation.
In today’s hearing, AGP Mansoor Usman reiterated his request for the bench to constitute a full court to hear the pleas. This request was echoed by Salahuddin Ahmed, the lawyer for the Pakistan Muslim League (Nawaz), with Justice Ahsan noting that the party’s petition had not yet been allocated a registration number.
During proceedings, Justice Ahsan asked the AGP if he had submitted the parliamentary record, with the AGP responding that it should be provided by tomorrow (Tuesday). He said the National Assembly speaker’s office had been contacted in this regard. Providing arguments for the validity of the legislation, the AGP said nothing in the act violated the basic structure of the Constitution. He noted that the judicial reform law dealt with formation of benches and appeals, as well as granting plaintiffs the right to change their lawyer for an appeal.
Maintaining that the matters in the bill were primarily administrative in nature, he said a full court could suggest amendments to it. In this regard, he argued, cases related to the independence of the judiciary and rules should be heard by a full court. Similarly, he said, the law would apply to all judges of the Supreme Court and so should be heard by its full membership. To this, Justice Ahsan observed that the question was not about the amendments, but whether Parliament had such legislative powers. “Various benches have been routinely hearing cases relating to legislative powers,” he said.
Justice Naqvi, meanwhile, questioned if there had been any similar legislations in the past. To this, the AGP said the president’s permission had been required to make any rules until 1973. Justice Naqvi then questioned how this legislation could be introduced in light of Article 191 (“Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court”) of the Constitution. Justice Mazhar also remarked that the government’s plea had stated this case was the “first of its kind.”
Justice Malik remarked that many cases were “the first of their kind,” adding that any bench could hear any case. She questioned if the government wanted to avail the “advantage” of a full court, hinting at the judicial rift that has the subject of media scrutiny for the past few months. She further questioned if the government wanted the top court’s internal discussions to be made public and questioned how it could be determined when a full court was merited. “Did a full court hear every case related to the judiciary’s independence?” she asked, adding that the court could not regulate proceedings at the whims of the petitioner.
Conceding that a full court had not heard every case related to the judiciary’s independence, the AGP recalled several cases—including that of Iftikhar Chaudhry—that were heard by a full court. “The Iftikhar Chaudhry case was of a different nature,” said Justice Naqvi.
Justice Akhtar remarked that a full court had the power to formulate rules for administrative matters and questioned if all such matters should be heard by a full court. Justice Malik then stated the AGP’s argument was “beyond comprehension,” as it indicated that a decision made by a full court was good and one made by a three-member bench was bad.
“Parliament says there should be a five-member bench; the attorney general says there should be a full court. It seems that the government’s count has weakened,” remarked Justice Akhtar. “If Parliament is satisfied with five judges, why isn’t the attorney general?” he asked.
The AGP, referring to the trial of Zulfikar Ali Bhutto, noted he had also objected to the bench in his case. “There was an objection to the judges and a nine-member full court heard the case,” he said, noting that the present petition did not object to any judge or chief justice. “If there is an objection,” remarked the CJP, “the judge has to decide if he wants to hear the case or not.” The CJP then said rules needed to be established for what circumstances called for the formation of a full court.
The PMLN’s lawyer, meanwhile, argued that the implementation of a law—as in the case of the Practice and Procedures Act—had been barred by the court for the very first time. He also noted that pleas were routinely filed for the formation of a full court, recalling that a full court had been constituted to hear the Justice Qazi Faez Isa case. Justice Ahsan said the case concerning Justice Isa was sent to the CJP, adding that the top judge himself did not hear the case.
The CJP then remarked that both the Iftikhar Chaudhry and Justice Isa cases were based on presidential references. “The SC is on trial when allegations are made against judges,” he said, adding that a full court was constituted due to its serious nature. The court then directed the AGP to submit the parliamentary proceedings’ record by tomorrow and adjourned the hearing for three weeks.
The bill in question was approved by a joint sitting of Parliament on April 10. It was then notified as an act on April 21 but its implementation had been halted by the Supreme Court even prior to its enactment.