Chief Justice of Pakistan, Justice Qazi Faez Isa has remarked that the Parliament passed the Supreme Court (Practice and Procedure) Act 2023 with good intention, reported 24NewsHD TV channel

The chief justice expressed these remarks while hearing a set of petitions challenging the SC (Practice and Procedure) Act that seeks to scuttle the powers of the chief justice of Pakistan.

A 15-judge SC bench led by Chief Justice Qazi Faez Isa and comprising Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali is hearing the case today.

The hearing is being streamed live on television as per the court directives.

During the hearing, Chief Justice Isa expressed his exasperation over the submission of additional documents. He remarked that since today was the last day of the hearing, any submissions could have been done before.

The top judge wondered if the justice system would run like this, nowhere in the world this thing happens.

“We should mend ourselves before the world points its finger at us regarding the powers of 184/3. If we did not correct ourselves, can the Parliament not act to correct the fault,” the CJP remarked.

Today’s hearing

At the outset of the hearing, SCBA President Abid Zuberi started giving his arguments.

Justice Ijazul Ahsan remarked that neither the Parliament could make rules nor could it legislate to make rules, only the Supreme Court has the authority to change the rules within the scope of the existing law.

The Chief Justice of Pakistan remarked that the Constitution says that the Supreme Court is empowered to make its own rules of practice and procedure. If the Supreme Court makes rules that are ultra vires to the Constitution, then someone could remind it to remain within the purview of the power conferred on it.

Justice Ijazul Ahsan said that the Constitution already binds the Supreme Court to make rules in accordance with the Constitution and the law.

While talking to Abid Zuberi, the Chief Justice of Pakistan said that time is short and he wanted a quick answer to his question: If we remove the word subject to law, what difference does it make to the authority to frame the rules?

The SCBA President said in his arguments that even if the words of making rules according to the Constitution and law are removed from the Constitution, it will not make a difference, on which Chief Justice Isa said that is fine, the answer has come, go to the next point.

Zuberi argued that if it was stated in Article 191 that the Parliament could enact legislation related to the Supreme Court, then it was right, on which Justice Ijazul Ahsan said, “There is another question, can the Supreme Court encroach upon the authority of the Parliament and enact a law? We have to see where the Constitution binds any institution to the constitutional limits, the Constitution empowers the Supreme Court to make rules according to the Constitution and law.”

Justice Ahsan went on to remark that the Parliament gave the power to the Supreme Court to make rules which it used, can the Supreme Court rules be changed by legislation?

Zuberi said that when the Supreme Court made the rules, they could not be changed by law, on which Chief Justice Qazi Faez Isa said that the hearing has to be completed today. He said ‘he wants to hear the lawyers, what the judges want to write in their decision they can write’.

Justice Munib Akhtar said that binding to make rules according to the Constitution and law means that rules will be made according to the existing law.

At this juncture, Chief Justice Isa reminded ‘full court is hearing this case and the caseload on our institution is increasing. Today the case must conclude’. He asked the lawyers to finish their arguments by 11 o'clock.

The Chief Justice inquired of Zuberi if he had submitted written arguments. On which, Zuberi said that he just submitted his written response.

Justice Qazi Faez Isa expressed his displeasure saying the court had already ordered to submit written arguments beforehand. So many documents have been seized now. In which country does it happen that during the hearing of the case, lawyers submit a written response, the CJP expressed his annoyance.

He said everyone gives examples of the West, how does the justice system work in the West?

Lawyer Zuberi said that he wanted to refer to the decision of the court of New Jersey. The Chief Justice remarked that at least refer to the decision of the US Supreme Court, do not lower our level so much that the decision of the New Jersey court is presented here as a precedent and it is not even a decision.

Justice Jamal Mandokhel said that we are looking at the intention of the constitution and the legislators here. If you want to gauge the intention of the legislators, then look at Article 175. If the legislators wanted to give complete authority to the SC, they would have written it clearly. Also, if the regulation conflicts with the law or the constitution, it will automatically become null and void.

The Chief Justice of Pakistan remarked that he would clarify the question, the constitution regarding the roles of the Judicial Commission and the Supreme Judicial Council states that the constitutional bodies themselves will make laws, while Article 191 says that the SC rules could be framed from law. The question is whether the framers of the constitution gave the option of law with the constitution itself.

Lawyer Zuberi said that the New Jersey court said that there is a difference between making laws and making rules.

Justice Muhammad Ali Mazhar remarked that read Article 175-2 together with Article 191. Article 175-2 states the power of any court to hear cases.

Zuberi said that Article 142-A and Entry 55 related to the rules of the Supreme Court have to be read together, the constitutional provision regarding the authority to make rules of the Supreme Court cannot be read alone.

The Chief Justice of Pakistan remarked that the full court is hearing this case to understand and learn from the lawyers, to argue on constitutional provisions.

Justice Ijazul Ahsan remarked that the constitutional provisions have to be read together, some articles of the constitution define powers and some define the limits of those powers.

Zuberi said that this is also the decision of the honorable Supreme Court.

Justice Ijazul Ahsan remarked that the Lahore High Court has also given a decision on the power to make laws and rules. Only the Supreme Court has the authority to amend the rules within the scope of the existing law.

Justice Munib Akhtar said that whether the Federal Sharia Court is at a higher level than the Supreme Court in making its own rules?

Zuberi said that if the Supreme Court makes its own rules, they will be at the highest level among all the rules.

Justice Mazahir Naqvi said that Parliament stopped the rules of the Supreme Court but why not the rules of the High Court and Sharia Court?

Justice Ijazul Ahsan said that the High Courts are empowered to make their own practice and procedure.

Lawyer Abid Zuberi said that even today, if the Supreme Court makes its own rules, no objection can be raised. The Constitution says that the Supreme Judicial Council will make its own rules, the value of which will be equal to the constitutional regulations.

Chief Justice Qazi Faez Isa remarked that before this the world has been pointing finger at us, 184(3) has been used in thousands of cases and how it was used is a fact.

Zuberi said that he agrees with the misuse of 184(3), but who has this authority to see whether it has been misused or rightly used.

Justice Athar Minallah said that Parliament has the authority to extend the powers of the Supreme Court.

Justice Ahsan said that the question is not about good or bad, it is about the ability to make laws. You tell me who has the authority to make laws about the Supreme Court.

Lawyer Zuberi said that the court has to decide whether this authority belongs to the parliament or not.

Justice Athar Minallah remarked that the delivery of justice is being affected. He inquired if the legislation can be enacted or not if fundamental rights are violated. If the Chief Justice can set this case for hearing, why not other cases like enforced disappearance could be heard. You have not even crossed the hurdle of admissibility of the petition, tell us which fundamental right is affected by this legislation, he asked the lawyer.

The Chief Justice remarked that under 184(3) how can we hear this case? You are saying neither we can extend our jurisdiction nor parliament, you are telling us that the court should extend its jurisdiction in 184(3).

Justice Jamal Khan Mandokhel said that in order to look at this act, one must first look at the violation of fundamental rights.

Lawyer Zuberi said that it has to be seen whether the parliament has the authority to make this law.

 ‘Article 184/3 misused’

The Chief Justice of Pakistan remarked that we do not understand what is your problem with this law, tell us how the power of Article 184/3 of the Constitution was used here, what happened in the human rights cell of the Supreme Court? Where is it mentioned in the rolls? Before the world raises a finger at us on the powers of 184/3, let's correct ourselves, if we don't correct the mistake, can't the parliament correct it, you are a lawyer of a political party.

Lawyer Zuberi said that he is not a lawyer of any political party, on which the Chief Justice inquired, "Does that mean you are not a lawyer of Tehreek-e-Insaf?" On which Zuberi said that no, I am the President of the Supreme Court Bar, I have appeared as an independent.

The Chief Justice of Pakistan, while giving remarks, asked whether the Human Rights Cell is mentioned in the Constitution or the Supreme Court Rules? What happened in the past regarding Article 184/3?

Lawyer Zuberi said that he has heard his opinion, Article 184/3 is coming now. He said he agrees with you that Article 184/3  continued to be misused.

‘Intention of parliament good’

The Chief Justice remarked “you initially attacked the intention of the Parliament and I say the intention of the Parliament is good.”

Justice Ijazul Ahsan remarked that there are reasons for the separation of powers. If the door for parliament is opened to interfere in the affairs of the Supreme Court, then no matter if the law of the parliament is good or bad, the question is about the opening of the door.

Lawyer Zuberi said that the right to appeal was not given in Article 184/3 of the Constitution, to which the Chief Justice remarked that he could give his counterargument as to how Article 184/3 has been used in any political case. If a decision is taken to ban a political party, shouldn't there be an appeal against it, if a patient is dying somewhere and someone with a little understanding of medicine should let him die because he is not a doctor? Parliament enacted legislation in good faith, the top judge observed.

Justice Ijazul Ahsan remarked that if the door is opened for the parliament to interfere in every matter of the Supreme Court, once the door is opened, there will be no end to it. Legislation can be good or bad. It cannot be that if the legislation is valid then it is right or else it should be declared null and void, the Constitution cannot work like this.

The Chief Justice of Pakistan remarked that look at the past, one person comes and rubber stamps the parliament, this does not happen in America, our past is very rotten, the Supreme Court itself did not come with the application.

Lawyer Zuberi said that the requests made by the Supreme Court Bar have not been fixed. The CJP remarked that if you end this case, the rest will be fixed.

Justice Musarrat Hilali inquired which provision of the Constitution has been referred to in the Act. In this way, the door of legislation is being opened by a simple majority.

Justice Munib Akhtar remarked that the door is being opened by directly amending the constitution by a simple majority.

The Chief Justice remarked that don't talk about yesterday, talk about today's situation.

Justice Jamal Mandokhel remarked that if the power of Article 184/3 had been used within the parameters of the constitution, then there would have been no such legislation. You are neither the plaintiff nor the defendant, so why are you opposing this act, he asked the lawyer.

Justice Mazahir Naqvi said that in Article 184/3, how was the right to re-hear the case of the original jurisdiction given by the appeal?

While talking to Zuberi, CJP Isa said that it seems you want the cases of clause 3 of Article 184 to remain pending and never end.

Justice Athar Minallah said that what will be the effect of getting the right to appeal against the decision of Article 184.

Lawyer Zuberi said that in such a case, the right of appeal will be available from 1973.

Talking to Zuberi, the Chief Justice said “our work will be enhanced by getting the right to appeal, why are you panicking? You say the number game should be completed in the parliament. But when an autocrat comes and makes a constitutional amendment, then we think that it’s okay. Parliament wants to do something good, so why do you want to crush it?”

Justice Athar Minallah asked the lawyer to give arguments related to expanding the jurisdiction of the Supreme Court.

The Chief Justice remarked that we also believe that the Provincial Assemblies do not have the authority to enact such legislation, just end the arguments now and do not give the impression that you do not want to end this case.

Justice Athar Minallah said that if a person has filed a review petition under Section 188 once, he cannot appeal, no right of appeal has been given against the review under the Act.

Then, the court took a short break.

‘Authority of CJP to be shared, not the authority of SC’

When the hearing started after the break, petitioner Umar Sadiq's lawyer Dr. Adnan Khan said in his arguments that the Chief Justice's office was made redundant by the legislation.

Justice Mandokhel said that if the Chief Justice and judges are one and the same, can the Chief Justice make a roster alone?

The Chief Justice remarked that the authority of the Chief Justice was to be shared here and not the authority of the Supreme Court.

Adnan Khan said that the powers of the Chief Justice were reduced by this law, but according to the Constitution, the Chief Justice is in the driving seat in administrative matters.

Chief Justice inquired what is his point?

Lawyer Adnan Khan said that the Parliament does not have the authority to create the rules of the Supreme Court through the act, the constitution framers deliberately did not give the Parliament the power to change the rules of the Supreme Court, the Supreme Court stands on two pillars: one is the Chief Justice and the other is the rest of the judges.

Justice Mandokhel remarked that in such a case, what was the need to call the full court, only the Chief Justice would have heard the case.

The Chief Justice of Pakistan remarked that where the powers given to the Chief Justice are mentioned in the Constitution, where the Chief Justice was given the sole powers apart from the Supreme Court.

Lawyer Adnan Khan said that the Constitution says that the Chief Justice himself can form benches without any consultation, the difference between the Chief Justice and other judges is administrative powers. This law can lead us to a dead end, what will happen if the two senior judges will not keep the Chief Justice in the bench tomorrow and send him on forced leave, will the Chief Justice then only do the chamber work?

Justice Athar Minallah told off the lawyer saying that he is talking about the future, tell us now which fundamental rights have been affected? What fundamental right he is defending, the judge asked.

Lawyer Adnan Khan said that Parliament has no power to legislate and it affects all fundamental rights. The Article 4 has been violated by the Supreme Court Practice and Procedure Act. The Supreme Court was ridiculed by giving the procedure of cases that need urgent hearing in the act.

Lawyer Adnan Khan said that consultation is a good thing and the Chief Justice can consult any of his colleagues, but there is no mention of consultation in this law.

The Chief Justice of Pakistan remarked that there is any such law or Sharia law that does not give the right of appeal? Where is it written in the law or Sharia that the judge's decision will be final? Give a reference.

Lawyer Adnan Khan said that he would submit the reference, after which the arguments of the petitioner Umar Sadiq's lawyer Adnan Khan were also completed.

Hot words exchanged between CJP and lawyer

During the hearing, lawyer Imtiaz Siddiqui objected to not being given time for arguments, on which harsh sentences were exchanged between the Chief Justice and the lawyer.

Lawyer Imtiaz Siddiqui complained to the Chief Justice that he had said that he would listen to lawyers first and then he would listen to the Attorney General, ‘it is unfair not to listen to us’.

The Chief Justice inquired where it is written in the order that we have to listen to you now?

The lawyer said to the Chief Justice that you should look at your behavior towards us.

On which, the Chief Justice reminded him that he should behave. He said that the order of the previous hearing was issued with the signature of all the judges and it was stated in the order that Imtiaz Siddiqui’s arguments were completed and he did not want to give further arguments.

Lawyer Imtiaz Siddiqui said that his colleague Khawaja Tariq Rahim did not come to the court today because of his behavior. He told the CJP that Khawaja Tariq asked him to convey a message to you.

Chief Justice Isa asked the lawyer to sit on his seat or he would issue some order for him.

Hearing this, lawyer Imtiaz Siddiqui returned to his seat.

The Chief Justice called the Attorney General to the rostrum.

Arguments of the petitioner Muhammad Shahid Rana Advocate

Meanwhile, lawyer Shahid Rana argued that the right to appeal was given under the Act, the appeal has to go to other judges, if 15 judges decide the case, where will the appeal go?

The Chief Justice remarked that the appeal will not go anywhere, it will go to Allah.

Lawyer Shahid Rana said that different judges hear the case in intra-court appeal from the judge who gave the decision in the High Court, the appeals in the Supreme Court are under Article 185, the appeal under Article 185 cannot be made under Article 184.

The Chief Justice of Pakistan remarked that we will give you the answer in the judgment.

The Attorney General said that before me, the lawyer of Muslim League-Q wants to give arguments, after which Zahid Ibrahim, the lawyer of Muslim League-Q, gave arguments.

The PML-Q said that the constitutional powers of this court have not been reduced under the Act, the power to legislate on the Supreme Court comes from Article 142, the Constitution does not even give Parliament a free hand to legislate on the Supreme Court.

Justice Muhammad Ali Mazhar inquired whether Entry 55 of the Federal Legislative List will not have any effect here.

The Chief Justice of Pakistan remarked that the questions will be answered later, complete your argument first.

Advocate Zahid Ibrahim argued that read the Article 191 along with Entries 55, 59 of the Federal Legislative List, this Court in the Justice Anwar Bhandar case related to Article 188 said that the powers of the Supreme Court could not be curtailed.

Justice Munib Akhtar in his remarks said that in the next part of the same decision, it was said that Parliament cannot change the Supreme Court Rules for improvement, do not rely on one sentence and read the entire decision, the decisions you are referring to are related to regulations already authorized by law.

On questions by Justice Munib Akhtar, the Chief Justice asked the PML-Q lawyer to answer the questions later, tell the points first.

Justice Yahya Afridi said that you should tell the full court your opinion. Lawyer Zahid Ibrahim said that this case is itself a recognition that Parliament can legislate.

Justice Ayesha Malik remarked that how is it possible that Parliament has been empowered to legislate on the rules of the Supreme Court by writing "Subject to Law"? There is a difference between Article 188 and Article 191.

After the arguments of the petitioners were completed, a short break was again taken in the Supreme Court Practice and Procedure Act hearing.

Justice Ijazul Ahsan remarked that according to the constitution, parliament is Supreme Court and can increase its powers.

Justice Muhammad Ali Mazhar inquired whether the extension of powers would be read in conjunction with Article 175(2) or not.

Justice Munib Akhtar said that when there is a will, we will make a law. Is this your argument?

The Chief Justice remarked that Zahid sir, please state your arguments first, if the parliament withdraws 184/3 tomorrow, or what would you say that the parliament cannot do this.

Justice Yahya Afridi said that you should explain the relationship between Article 191 and Entry 55.

Justice Munib Akhtar remarked that the Constitution was directly amended by the Supreme Court (Practice and Procedure) Act. Does the Constitution give power to the Parliament to make such legislation.

Justice Mansoor Ali Shah said that Article 191 under legislative power states that Supreme Court Rules can be changed by law.

The Chief Justice while talking to lawyer Zahid Ibrahim said that it is not necessary that you agree with all the arguments.

Justice Munib Akhtar said that the judge sitting on the bench has the right to ask questions.

Justice Ijazul Ahsan said that Parliament has the power to expand the scope of the existing law, how was the scope of the law expanded by giving the right of appeal? How can something be added to the jurisdiction of the Supreme Court through legislation?

Justice Muhammad Ali Mazhar said that extension of jurisdiction can be read in conjunction with Article 175 Clause 4 or not?

Justice Munib Akhtar said that you are repeatedly saying that the Supreme Court had the power to legislate on the rules from the beginning.

Lawyer Zahid Ibrahim said that he would ask the petitioners which fundamental right has been affected by the Act.

Justice Ijazul Ahsan remarked that efforts have been made to regulate the functioning of the Supreme Court, if not the micro-management intervention of the judiciary, then what intervention will there be?

Justice Shahid Waheed inquired whether the jurisdiction can be extended by Act of Parliament or constitutional amendment is required for it. Can other provisions of the constitution be changed without constitutional amendment?

The Chief Justice remarked that the message should not go out from this court that laws depend on the wishes of the Chief Justice, such an impression and message would be destructive, I am a servant of the Constitution and answerable to Allah.

Justice Munib Akhtar remarked that who is the master of roster after this law.

Lawyer Zahid Ibrahim said that the committee will decide, on which the Justice Munib Akhtar remarked that the committee will be the Master of Roster. The point is that in any situation, including the present, the Parliament will become the Master of Roster.

The Chief Justice remarked that if the word Master of Roster is in the Rules, the Chief Justice has the authority to appoint a bench and the Chief Justice has the authority of the Registrar to appoint the cases, in which law the word Master of Roster is there.

Justice Mansoor Ali Shah remarked that there are no masters anywhere in the world, if one person has the power to constitute benches, it can affect the outcome of the case.

Justice Munib Akhtar said that if one person can influence the results, three can also.

After the arguments of Muslim League-Q lawyer Zahid Ibrahim were completed, Muslim League-N's lawyer Salahuddin started the arguments.

‘Power to form a bench not a constitutional power’

During his arguments, Muslim League-N's lawyer Salahuddin referred to Justice R. Asif Saeed Khosa's article. He said that 10 members of the present bench have also raised their voice on the powers of the Chief Justice.

The PML-N lawyer said that formation of benches and appointment of cases is not a constitutional power, the power to form a bench is not a constitutional power.

Justice Munib Akhtar inquired that has he read the India Act of 1861?

Salahuddin replied in negative.

Justice Munib Akhtar said ‘I tell you this power started from there, the first law was made in 1861 after the beginning of the British rule, if you look at the constitutional history, there is a watermark on the interference in the case of Master of Roster’.

Barrister Salahuddin said that with respect to constitutional history, he will take a different stand, after 1962 the powers of the Chief Justice began to decrease and the powers of the Supreme Court began to increase. If the framers of constitution have abolished one power, it cannot condoned.

Previous hearings

During the last two hearings which were also streamed live, five lawyers of the petitioners completed their arguments.

Today rest of the lawyers, the attorney general, and counsels for the PML-N and PML-Q will present their arguments. 

During the previous hearing, Chief Justice Isa inquired how the SC (Practice and Procedure) Act could reduce the powers of the apex court.

The chief justice had also said that the next Oct 9 hearing should be the last and told the lawyers that only one case would be fixed on that day, asking the counsels to be prepared if the proceedings continued till late at night.

In April, the Supreme Court — then led by former CJP Umar Ata Bandial — had stopped the government from implementing the bill seeking to curtail the chief justice of Pakistan’s powers once it became a law.

 

Reporter Amanat Gishkori