ISLAMABAD: A full court bench of the Supreme Court of Pakistan on Monday resumed hearings on a series of petitions challenging the Supreme Court (Practice and Procedure) Act of 2023, mandating formation of benches to address constitutional matters of public significance through a committee comprised of three senior judges of the apex court.
In an unprecedented move, the proceedings are being broadcast live on television for the first time, with all 15 judges of the Supreme Court presiding over the case.
Following arguments presented by two lawyers, the court decided to take a short recess, with the hearing set to resume after 3 pm. When the proceedings recommenced, Attorney General for Pakistan (AGP) Mansoor Usman Awan took the podium.
Shortly after being sworn in, Chief Justice of Pakistan (CJP) Qazi Faez Isa constituted a full court to address a series of pleas challenging the legislation. This legislation had been previously suspended by the SC under then-CJP Umar Ata Bandial back in April.
Before the hearing commenced, the federal government urged the Supreme Court to dismiss the pleas challenging the law. Attorney General for Pakistan (AGP) Mansoor Usman Awan submitted a comprehensive response on behalf of the government, arguing that the petitions contesting an act of Parliament were not admissible, as the independence of the judiciary remained unaffected by the Practice and Procedure Act.
Advocate Khawaja Tariq Rahim initiated arguments in the case, with Justice Ayesha inquiring about the implications for Section 5 if the law were upheld.
“What would happen to the right of appeal provided under this law?” she asked. Justice Isa then requested Rahim to read the law aloud, but the lawyer frequently veered off topic, prompting the judges to urge him to stick to reading the Act.
“Certainly, the country expects 57,000 cases to be decided. We are eager to hear your arguments, but let’s concentrate on your petition… please proceed with your arguments,” CJP Isa remarked. Rahim then continued reading out the Act.
However, he once again halted his reading of the law and stated, “The formulation of these rules, under Article 191, is within the Supreme Court’s prerogative. When they formulated the rules in 1980, the entire court collaborated to establish them.”
Justice Naqvi expressed his curiosity regarding whether the lawyer was implying that he had no objections to consolidating significant powers within a single office.
“Is that your question? Are you endorsing what has occurred in the past? What is your legal stance?” he inquired. Chief Justice Qazi Faez Isa once again requested Rahim to read the Act aloud.
Justice Akhtar then raised the question of whether Parliament could diminish judicial authority under Article 184(3) by stipulating the formation of a committee comprising three senior judges to determine bench compositions.
Article 184(3) of the Constitution outlines the Supreme Court’s original jurisdiction and grants it the authority to assume jurisdiction in matters of “public importance” pertaining to the “enforcement of any of the fundamental rights” of Pakistani citizens.
Justice Minallah additionally noted that because this authority was previously solely vested in the chief justice, an argument had arisen that the outcomes of cases could be influenced by the constitution of benches, potentially undermining judicial independence.
“If this argument is accepted, then the earlier traditional model, in which one person could control the outcomes of cases through bench compositions, would be acceptable to you, and this may have been the issue that Parliament aimed to address,” he suggested.
Justice Ahsan referred to a prior Supreme Court judgment during the hearing, stating that it had provided guidance on the procedure the chief justice should follow to invoke the Supreme Court’s jurisdiction under Article 183.
Justice Hilali, during the proceedings, questioned whether the office of the Chief Justice of Pakistan (CJP) would become “redundant” following the passage of the Act. Justice Mandokhail also inquired whether the powers of the Supreme Court had been curtailed or those of the CJP.
After considerable prompting from Chief Justice Isa, Rahim finally argued that Sections 5, 6, and 7 of the Act were in violation of the Constitution. At one juncture, the Chief Justice once again reminded the lawyer that he could take note of the court’s questions and respond to them once he had finished reading the Act.
The Chief Justice took issue with the lawyer’s arguments so far, noting that he had not referenced the Constitution at any point. “Stick to constitutional arguments,” he remarked.
Advocate Imtiaz Rashid Siddiqui then approached the podium and emphasized that the fundamental question at hand was whether Parliament had the authority to promulgate this Act.
Justice Minallah subsequently argued that Parliament had diluted the chief justice’s discretionary powers. “That’s all Parliament has done. It has selected three judges. No one from outside has been brought in. It is still the chief justice and the two most senior judges. No one’s fundamental rights are being infringed; instead, institutional independence is being fortified,” he contended.
He further pointed out that the new law provided a right of appeal. “So, which fundamental rights of the petitioner have been violated, prompting you to approach the court under Article 184(3)?” he inquired.
Siddiqui contended that the entire Act was beyond the scope of the Constitution since “this domain was not available to Parliament.”
At one juncture, Siddiqui argued that the question of fundamental rights being violated arose when Parliament did not follow due process when legislating and if there was evidence of “constitutional deviation.”
Justice Akhtar then inquired whether judicial independence was a fundamental right and whether it was not a prominent feature of the Constitution.
He questioned whether, each time a full court was constituted, it was granted a “blank slate” to disregard established legal precedents and fundamental rights. “Does the full court even have the authority to do this? If we were to do that, disregarding previous precedents, then surely we would need substantial reasons to declare, for example, that judicial independence is not a prominent feature of the Constitution,” he posited.
He wondered if Parliament could selectively determine which judges were included in the committee. “Today, Parliament says no less than five judges for Section 4. Tomorrow, it may declare that family matters require no fewer than seven judges. Is this part of ensuring access to justice?” he questioned.
Supreme Court (Practice and Procedure) Act of 2023
The previous government of PDM had passed the Supreme Court (Practice and Procedure) Bill 2023, aimed at curtailing the authority of the Chief Justice. This law diminishes the CJP’s ability to take suo motu notice independently. Instead, a three-member bench, including the CJP and the two most senior judges, will decide on suo motu matters.
The law also expands the Supreme Court’s review jurisdiction, allowing appeals within 30 days of suo motu judgments.
On April 13, an eight-judge SC bench led by former CJP Bandial suspended the enforcement of the Act, citing potential constitutional concerns. Petitioners argued that the law was passed with mala fide intent and should be nullified for lacking legal authority.
They contended that the federal government cannot regulate or interfere with the Supreme Court’s functioning and powers under the Constitution.
