CJP rules three-judge panel to determine bench composition

ISLAMABAD (A1tv News) Chief Justice of Pakistan (CJP) Qazi Faez Isa has ruled that a committee consisting of himself and the two most senior judges will be responsible for determining the composition of benches, as the Supreme Court commenced on Monday the proceedings to review a series of petitions contesting the Supreme Court (Practice and Procedure) Act 2023.

The Supreme Court (Practice and Procedure) Act 2023 mandates the establishment of benches to address constitutional matters of significant public importance, which will be formed by a committee composed of three senior judges from the court.

Back in April, the Supreme Court had in a preemptive move prohibited the government from enacting the bill aimed at reducing the authority of the chief justice of Pakistan once it becomes law.

CJP Isa observed that the Supreme Court (Practice and Procedure) Act 2023, passed by parliament, should not be viewed as an endeavor to limit the authority of the chief justice of Pakistan by transferring the suo motu powers to a three-member committee.

A full court bench, headed by Chief Justice of Pakistan Qazi Faez Isa, is hearing the review petitions [clubbed together] against the Supreme Court (Practice and Procedure) Act, 2023 – a legislation introduced by the former coalition government. 

After hearing arguments of Attorney General of Pakistan (AGP) Mansoor Usman Awan and two other lawyers, the court adjourned the hearing till October 3. 

Before adjournment, the lawyers of parties were instructed to submit their written arguments by September 25. 

This is the first time in country’s history that the hearing in a case is being live telecast.

In this way, the new chief justice is hearing one of the most important cases currently pending with the Supreme Court on his very first working day.

Chief Justice Qazi Faez Isa is presiding over the full court on the first court day. The 15-member full court also includes Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Mazahir Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.

Earlier, after taking oath, Justice Isa on Sunday had approved the petitions to constitute a full court on appeals against the SC Practice and Procedure Act in the Supreme Court.

The federal government requested the apex court to reject the petitions against the Supreme Court Practice and Procedure Act. The federal government, taking a stand, requested that the petitions against the act of parliament were inadmissible, so theses should be dismissed.

The federal government submitted its written response in the case through the attorney general, in which the federal government requested to reject petitions against the Act.

According to the government reply, parliament was empowered to legislate under Article 191 of the Constitution and it did not prevent it from making laws.

It was stated in the reply that the independence of the judiciary was not affected by the said Act and no power had been withdrawn from the Supreme Court. It further said the petitions against the parliament act were inadmissible even on merit.

Monday’s hearing

As the hearing started, Khawaja Tariq Rahim started presenting arguments. Justice Ayesha Malik remarked that the right to appeal had been given in Section 5 of the Act in question.

“If we decide the case on the full court and declare the law correct, how the appeal would be made against it? she asked.

The chief justice remarked that 57,000 cases of the people were awaiting justice.

Justice Mandokhel remarked that Khawaja Rahim should read Article 191. The lawyer said the power to regulate the court belonged to the Supreme Court under the Federal Legislative List Schedule.

The chief justice said the Supreme Court had its own authority to regulate its powers. “Are you saying that 1989 rules are in conflict with the Constitution? the CJP asked the counsel.

Rahim said the rules of 1980 were framed by the full court and those rules were correct. The chief justice remarked that he should not talk about the future and limit his arguments to the present.

The CJP said if the legislation would be enacted in the future, he could challenge it again.

Justice Muneeb Akhtar questioned that allowing the thee-member committee to have the power of clause 3 of Article 184, was a judicial power or an administrative one.

Justice Muneeb raised the question that if there was administrative authority, had parliament abolished the judicial authority?
Justice Musarat Hilali asked if the powers of the chief justice 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 whether he agreed that the chief justice was master of the roster.

Rahim argued that he was saying that this power could not be used by parliament.

Justice Akhtar said don’t he think that powers of the CJP could be regulated only through constitutional amendment? Justice Shah said, “Do you mean to say that 17 judges can regulate the powers of the full court but parliament cannot?” Khawaja Rahim replied he did not mean that.

Rahim said a constitutional amendment was needed to grant right of appeal and the Practice and Procedure Act was unconstitutional.

Advocate Imtiaz Rashid Siddiqui, while taking the rostrum, said the fundamental question was whether parliament had the power to promulgate this act or not.

No, the CJP said, that was not the fundamental question. The primary question was whether Article 184(3) could be invoked.

At that, the lawyer began referring to previous court judgement, but was interjected by the CJP.

Justice Isa explained to him the court sought his arguments on invocation of Article 184(3), under which two primary points were to be established: that the case was a matter of public interest and it sought the enforcement of fundamental rights.

He further said that had the high courts been moved on the matter prior to the SC and it had allowed the pleas, then he could come to them in the appellate jurisdiction.

However, the petitioners had opted to move the court under Article 184(3), which had a narrow scope, he added.

As the lawyer proceeded to refer to the previous judgements despite the explanation, the CJP remarked that judgements were secondary to the Constitution.

He then asked the lawyer to read out Article 189, which says: “Any decision of the Supreme Court shall to the extent that it decides the question of law or is based upon or enunciates a principle law be binding upon all other courts in Pakistan.”

The CJP remarked that phrase used in the provision was ‘all other courts’, not the SC. “So don’t cite our own precedents to us. You are being asked a constitutional question,” he said.

Justice Minallah then said that Parliament had diluted the chief justice’s discretionary powers. That was all Parliament had done. It picked three judges. No one had come from the outside. It’s still the chief justice and the two senior most judges. No one’s fundamental rights were being affected, instead institutional independence was being strengthened, he said.

He further said that a right of appeal was being provided under the new law. So which fundamental rights of the petitioner had been violated under which you have [approached the court] under Article 184(3)?” he asked.

Siddiqui was of the view that the entire Act was ultra vires the Constitution as “this domain was not available to Parliament. However, Justice Minallah asked the lawyer to clarify whether the Parliament did not have the power to legislate on the matter.

When the lawyer answered in the affirmative, the judge asked him to explain whether the status of SC rules was higher or lower than Parliament.

What the law is?

It should be remembered that the eight-member bench of the Supreme Court had stopped implementation of the Practice and Procedure Act on April 13.

The Supreme Court Practice and Procedure Act deals with distribution of powers of the chief justice in cases of public interest. According to the act, the decision to take suo motu notice will be taken by a committee comprising the chief justice and two senior judges.

The Supreme Court (Practice and Procedure) Act, 2023 has curbed the chief justice’s powers to take suo motu in individual capacity and vested the same to a three-member committee.

Moreover, the legislation also says that the three-member committee would also responsible for constituting benches to handle cases with the majority vote being the mode of making a decision in case there is a disagreement.

Last month, Justice Mansoor Ali Shah suggested that the chief justice should halt proceedings of cases instituted under Article 184(3) of the Constitution until a final decision on the fate of the law.

His remarks were part of the two-page note he issued during the hearing of a petition filed by the PTI chairman challenging the amendments to the NAB laws.

However, the three-member bench headed by the then chief moved ahead and later struck down the changes introduced by the coalition government by accepting the petition.

But Justice Shah wrote a scathing dissenting note in which he advocated parliament’s supremacy and its powers to make or unmake laws.