ISLAMABAD: The Supreme Court of Pakistan (SCP) has directed the attorney general for Pakistan (AGP) to submit the record of parliamentary debate on the law seeking to clip the powers of the chief justice of Pakistan till tomorrow, and adjourned the hearing for three weeks.
The court also retained the stay on the implementation of the law till a final decision on the petitions.
An eight-member larger bench resumed hearing petitions challenging the Supreme Court (Practice and Procedure) Bill 2023, meant to clip the CJP’s powers on taking suo motu action and constitute benches.
Headed by CJP Umar Ata Bandial, the bench also comprised Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.
At the outset of the hearing, Attorney General Mansoor Usman Awan told the court a request had been submitted for setting up a full court to hear the case.
He also mentioned that the Pakistan Muslim League-Nawaz (PML-N) had filed a similar petition.
Justice Ahsan pointed out that the government’s request had not been scheduled for a hearing yet. He then inquired whether the AGP had provided the documents that the court had requested during the previous hearing.
CJP Bandial asked Attorney General has he submitted a parliamentary record of the Supreme Court (Practice and Procedure Bill) 2023? To which he replied in the negative saying it is expected that the record of the parliamentary proceedings will be available by tomorrow as Speaker’s office has been contacted both formally and informally.
“The independence of the judiciary is a crucial aspect of the Constitution, constitution of the benches and the matters of appeals have been fixed in the law”, said Attorney General.
He argued that matters outlined in the law are administrative in nature. He stated that the Supreme Court’s (SC) rules were formulated by a full court and, therefore, any decisions or cases regarding the judiciary’s independence and rules should involve a full court. He also noted that the law would apply to judges who were not involved in the case.
However, Justice Ahsan disagreed, stating that the matter at hand concerned the power to legislate and not changes to the SC rules. He explained that various benches routinely hear cases relating to legislative powers.
Justice Naqvi then questioned whether such a law had been enacted in the past, to which the AGP replied that the president’s permission was required for making rules until 1973. Justice Naqvi further asked how such a law could be passed when Article 191 of the Constitution was present. The AGP contended that such a case had not been filed in the past and, therefore, a full court should be constituted.
Justice Malik, however, questioned whether the government wanted to avail the “advantage” of a full court and whether the government wanted the top court’s internal discussions to come out in the open. She also asked whether the AGP was trying to say that the nation had demanded a full court.
The AGP conceded that a full court had not heard every case related to the judiciary’s independence but highlighted that several cases, including the Iftikhar Chaudhry case, were heard by a full court. Justice Naqvi argued that the Iftikhar Chaudhry case was of a different nature.
Justice Akhtar then stated that the full court had the power to formulate rules for administrative matters. He asked whether a case concerning the SC rules that came up before a three-member bench should also be heard by a full court.
Justice Malik went on to state that 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.
During the hearing, the Attorney General for Pakistan (AGP) stated that the top court had barred the government from implementing the law. Justice Akhtar pointed out that if Parliament was satisfied with a five-member bench, why wasn’t the attorney general?
The AGP referred to a past case involving former Prime Minister Zulfikar Ali Bhutto, where an objection was made to the judges and a nine-member full court heard the case. However, the Chief Justice of Pakistan (CJP) observed that if there was an objection, the judge had to decide whether to hear the case or not.
The AGP argued that the matter did not only concern the interpretation of the Constitution, but also the establishment of military courts in the country, which had been upheld by the SC. However, the CJP clarified that the case at hand did not concern a constitutional amendment.
The PML-N’s lawyer argued that the implementation of a law had been barred by the court for the first time, and that pleas were routinely filed for the formation of a full court. Justice Ahsan noted that the case concerning Justice Isa was sent to the CJP, who did not hear the case himself.
The court then directed the AGP to submit the parliamentary proceedings’ record by the next day and adjourned the hearing for three weeks.
The court also acknowledged the need for further assistance in ascertaining under what circumstances the bench could call for the formation of a full court.
Meanwhile, the federal government again filed a plea in the apex court to form a full court bench to hear all the petitions against the bill as SC turned down centre’s plea in the last hearing.
In the plea, the government argued the court’s decision to suspend the law suggests that it viewed the proposed legislation as a significant threat to the independence of the judiciary.
While the government maintains complete trust in every judge of the Supreme Court, it does not wish for any particular judge to hear the petition. Due to the crucial nature of the matter at hand, the government is requesting that the petitions against the law be heard by all judges of the Supreme Court.
In last hearing, Chief Justice of Pakistan (CJP), Justice Umar Ata Bandial, emphasized the interim nature of the previous court order concerning the independence of the judiciary.
He remarked that democracy and a free judiciary and Centre were important components of the Constitution and that the current case concerned the independence of the judiciary, a fundamental feature of the Constitution.
The top judge expressed his expectation for serious arguments from the parties in the case and stated that the large bench would have to provide excellent assistance due to the law in question being the first of its kind in Pakistan and concerning the third pillar of the state.
The Pakistan Bar Council’s (PBC) lawyer argued that the council had always fought for the rule of law and the judiciary. He suggested that it would be appropriate for a full court to be constituted to hear the case, with no objections to a bench consisting of the seven senior-most judges.
Justice Bandial stated that a judge cannot be prevented from working until the Supreme Judicial Council (SJC) gives its opinion, and cited the same decision made during the proceedings against Justice Qazi Faez Isa.
CJP also acknowledged that complaints against judges were commonplace, including against himself, and pointed out that political matters had “polluted” the environment of the top court.
The lawyer also pointed out that several references had been filed against one of the members of the current Supreme Court (SC) bench and called for Justice Naqvi to be excluded from the bench, although the request was rejected.
In response, the court requested detailed answers from all parties in the case on May 8. The court also sought the parliamentary record of the law as well as the arguments presented in the relevant standing committee.
The Supreme Court (Practice and Procedure) Bill 2023, aimed at limiting the powers of the Chief Justice of Pakistan (CJP) to take suo motu notice, has faced obstacles in its journey to becoming law.
While initially passed by both houses of parliament, the bill was sent back by the president for being beyond parliament’s competence. Later, it was adopted by a joint session of parliament, albeit with some amendments.
However, a recent ruling by an eight-member apex court bench has put the law’s implementation on hold, stating that it shall not take effect in any manner. The ruling came during a hearing of three petitions challenging the bill. It remains to be seen whether the bill will eventually become law or not.
The petitions The three petitions were filed under Article 184(3) of the Constitution by Advocate Muhammad Shafay Munir, Raja Amer Khan, Chaudhry Ghulam Hussain and others.
The petitioners argue that the bill is an act tainted with mala fide and urge the court to strike it down after declaring it to be without lawful authority and of no legal effect.
The federal government, law secretaries, as well as principal secretaries to the premier and president have been named as respondents in the case. The petitioners have requested the court to suspend the bill during the pendency of the petition, with a directive for President Alvi not to assent to the bill so that it could not become an act of parliament.
According to the petitions, the federal government cannot frame any law that seeks to interfere or regulate the functioning of the apex court or the powers exercised by it or its judges, including the Chief Justice of Pakistan (CJP), under the Constitution. The petitions contend that the impugned bill is ultra vires and an unconstitutional measure, in sheer violation of the constitutional mandate.
The petitions emphasize that the independence of the judiciary and of each of the judges, including the CJP, is declared as an aim enunciated in the preamble to the Constitution and is a substantive part of the Constitution. It is argued that the SC, led by the CJP with its judges, must be independent of all executive or legislative transgressions to perform their constitutional obligations in providing justice to the people of Pakistan.
The petitions further argue that it is unimaginable that the office of CJP, with respect to constitutional powers, could be allowed to be regulated by the parliament. The independence of the judicial organ of the state, the judges, and the CJP must not be compromised, as provided in the Constitution.
Overall, the petitions seek to protect the independence and functioning of the judiciary in Pakistan, arguing that any attempt to regulate or interfere with its powers and functions is a violation of the Constitution and the fundamental principles of justice.
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