The Supreme Court has again directed the attorney general for Pakistan to submit the record of parliamentary proceedings on the SC reform law to the court by tomorrow, reported 24NewsHD TV channel.
The apex court issued this directive on Monday during the hearing of a set of petitions challenging the newly-enacted law aimed at trimming the powers of the chief justice of Pakistan.
An eight-judge larger bench of the Supreme Court led by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed heard the case.
As the proceedings were set into motion, Attorney General for Pakistan Mansoor Usman Awan informed the apex court that a plea had been submitted for the formation of a full court to take up this case.
In response, Justice Ijazul Ahsan observed that the government’s plea had not yet been fixed for hearing, nor it has yet been allotted a number by the SC Registrar.
During the last hearing on May 2, Justice Umar Ata Bandial had sought the record of National Assembly proceedings when the bill, which has since become an act of Parliament, was deliberated upon by the House.
The bench had directed the AGP to furnish copies of the proceedings of the standing committee and the House proceedings “to understand the concerns and views of the lawmakers while passing the bill”.
The CJP had also set aside the Pakistan Bar Council’s request for a full court, observing that it would be considered again during the next hearing.
Bench questions AGP over full court plea
During today’s proceedings, the chief justice asked the AGP if he had he submitted the documents.
The AGP replied in negative saying that he was expected to get the record of parliamentary proceedings by tomorrow.
Justice Mazahir Ali Akbar Naqvi inquired if there were any examples of such legislation in the past. How can such legislation be made in the presence of Article 191, he wondered.
Justice Ayesha Malik remarked if the government was demanding a full court to take a favourable decision. “How will it be decided which case the full court is to be heard,” she insisted.
The AGP said that the authority of the President to make legislation related to the Supreme Court was withdrawn. However, the provision to make the rules in accordance with the Constitution and the law was retained, he added.
The attorney general went on to say that they had never faced such a case in the past. Therefore, a full court should be formed, he pleaded.
Justice Ayesha Malik remarked many cases were first of their kind. Any bench of the Supreme Court can hear any case, she underlined.
“Under the rules, constitution and law, does the government want the internal discussion of the court to come out,” Justice Ayesha said adding, “Every case is important, how can we be sure which case will be heard by the full court?”
Did the full court hear every case related to the independence of the judiciary, she inquired.
The AGP said that the full court heard many cases including the Iftikhar Chaudhry case.
The chief justice remarked that since 1996, the cases related to the independence of judiciary were being heard.
Justice Ayesha inquired if the AGP wanted to say that people’s trust was in the full court.
“How the court should regulate its proceedings on the whims of the petitioner, Justice Ayesha remarked.
Justice Munib Akhtar said that the authority to make rules is one of the administrative affairs of the full court. He wondered if a case of interpretation of rules came before a three-member bench, should the full court also hear it. “Full court has made its own rules, the judge said.
The AGP said that in the present case, the legislative authority was challenged.
It is beyond us that the decision of the full court will be good and that of a three-member bench will be bad, Justice Ayesha remarked.
Justice Munib Akhtar asked the AGP what he wanted, if the rules were made by the full court, then the interpretation should also be made by it.
The judge said that the parliament itself had given an answer to the full court in the law which it had enacted.
According to the SC reforms act, a five-member bench will hear the case of the interpretation of the constitution, Justice Akhtar observed while goading the AGP asking him “Either you must say that the Parliament has made a wrong law”.
The attorney general said ‘but the court has prevented the implementation of the law’.
If there was no halting order by the court, where the plea for the full court would have gone, Justice Akhtar inquired.
“Parliament wants a five-member bench while the attorney general demands full court. Looks like the government has forgotten to count how many judges are sitting in this bench,” Justice Akhtar remarked.
AGP Mansoor Awan said that the plea for the full court could be made whenever it deemed fit.
Justice Ayesha remarked that courts normally hear petitions against laws. High courts also hear petitions against laws. Has a full court request ever been made in the high court,” she inquired.
This is not the first case of its kind, Justice Mazahar Ali Akbar Naqvi said, adding that a case of similar nature was also heard in 2012.
Justice Munib Akhtar wondered whether 60 judges in the Lahore High Court and 40 judges in the Sindh High Court would hear the case.
The attorney general said that the SC Reforms Bill had not been challenged in the high court and he was not going to discuss it.
Justice Mazahir Naqvi said that it was written in the full court petition that the bench had given its mind in the injunction about halting the implementation of the law.
Justice Ijazul Ahsan observed if the Supreme Court gave a decision, the high courts would be bound to form a full court.
Justice Munib Akhtar said that if the provincial assembly also made such a law, would the entire high court hear the case?
Justice Ayesha inquired whether all eight judges would decide about the full court.
Justice Shahid Waheed inquired if the bench could order the chief justice to form a full court.
Justice Ayesha inquired if there was also a question on whether the request to form a full court was admissible. Can such a request be made at the administrative level, she asked.
The attorney general said that the judges could request the chief justice to form a full court.
Bench shows reservations over plea
Justice Shahid Waheed observed: “But in the petition, you are requesting to make an order to the chief justice to form full court. Can the court order the chief justice? What kind of order can the court give on such a request?”
The attorney general said that in the past, a full court had been formed on such a request.
Justice Mazahir Ali Naqvi said that the court had reservations on the plea seeking formation of the full court.
The chief justice remarked that the full court request made in the plea was not well worded, but the court understood it.
The AGP said that former premier Zulfikar Ali Bhutto had objected to the bench which was hearing his execution case. The objection was made on the judge and a 9-member full court heard the case, he added.
Justice Mazahar Ali Naqvi said that the reasons were also given in the decision that he was referring to.
The attorney general said that then chief justice Anwarul Haq rejected the objection and he himself was included in the 9-member full court. There is no objection to any judge or chief justice in the current application, he added.
Chief Justice Bandial remarked if there was an objection, the judge had to decide whether to hear the case or not.
The AGP said that he had presented his arguments regarding the formation of full court.
The chief justice remarked that it was for the future use to determine under what circumstances the bench could ask for the constitution of a full court. The court needs more assistance in this regard, the CJP added.
The arguments of the attorney general on the formation of the full court were completed, after which the PML-N lawyer, Barrister Salahuddin, started his arguments.
The PML-N lawyer said that the implementation of the law had been stopped for the first time through the court injunction. “Bench applications seeking full court are normal. A full court bench was also constituted in the Justice Qazi Faez Isa case,” he added.
Justice Ahsan remarked that the matter related to Justice Isa's case was referred to the chief justice. The chief justice himself was not hearing the Justice Isa case.
Barrister Salahuddin argued further that the 7-member bench had directed to constitute a full court. Sometimes the bench itself sends the file to the chief justice for the constitution of the full court, he added.
Chief Justice Bandial said that the Iftikhar Chaudhry and Justice Isa cases were filed on presidential reference. If the judges are accused of something, the Supreme Court is on trial, the CJP said adding that the full court was constituted only when the matter was of a serious nature. References against both judges were declared null and void by the Supreme Court.
He asked the lawyer to give example of another case in which the full court was formed.
The PML-N lawyer Salahuddin further said that a full court was also constituted in the IG jails case.
He contended that the rules of the Supreme Court do not structure the authority of the chief justice to form a bench.
Justice Munib Akhtar remarked that the law which has been made by the Parliament talks about a 5-member bench. How the PML-N can plead for a full court, the judge asked.
PML-N raises objection to bench
During the hearing, the Pakistan Muslim League-Nawaz raised an objection to the present bench in the petition.
Barrister Salahuddin said that even the petitioner could also submit a written application regarding his position.
Justice Ijazul Ahsan remarked ‘You want the court to decide which cases will be heard by which bench. If you open Pandora's box, the full court requests will keep pouring in’.
Later, after hearing the arguments of the AGP and PML-N lawyer, the chief justice directed the attorney general to submit the records of the proceedings of the Parliament and the National Assembly Standing Committee to the court by tomorrow.
Then the court adjourned the hearing of the case for three weeks.
Reporters Amanat Gishkori and Farzana Siddque