SC postpones hearing on appeals challenging Supreme Court (Practice and Procedure) Act

ISLAMABAD: The Supreme Court heard a set of petitions challenging the Supreme Court Practice and Procedure Act, 2023, which seeks the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.

The Supreme Court full court bench headed by Chief Justice Qazi Faez Isa postponed the hearing of the Practice and Procedure Act case until October 3.

The Supreme Court has directed all parties to submit their responses by September 25. Parties have been asked to submit their responses one week before the next hearing, according to the court.

Lawyers who have already submitted their responses did not need to do so again, the chief justice said. All parties’ lawyers must submit their additional responses before September 25, the court emphasized.

“I will consult with my senior judges to form benches,” the chief justice said.

Earlier, Chief Justice Qazi Faez Isa headed the full court bench that conducted the hearing on appeals challenging the Supreme Court Practice and Procedure Act, 2023.

The Supreme Court accepted pleas to form a full court to hear appeals against the Act.

At the onset of the hearing, the federal government petitioned to reject the petitions against the Supreme Court Practice and Procedure Act. The government has maintained its stance, arguing that requests challenging Parliament’s law are not admissible and should therefore be dismissed.

Furthermore, the federal government has submitted a written reply in the Supreme Court, asserting that under Article 191 of the Constitution, Parliament can legislate, and Article 191 does not hinder Parliament from making laws.

The reply said that the Supreme Court Practice and Procedure Act does not impede the judiciary’s independence, and no powers granted under the Act have been revoked by the Supreme Court. Even on merit, the requests challenging the law are not admissible according to Parliament.”

Hearing of the Supreme Court Practice and Procedure Act Case

The hearing of the Supreme Court Practice and Procedure Act case commenced with lawyer Khawaja Tariq Rahim, representing a petitioner. He expressed hope that the bench, judges, and the bar would work in harmony.

Chief Justice Qazi Faez Isa extended an apology for the delay and emphasised that they had granted permission for live coverage to ensure transparency, forming a committee to oversee it. Khawaja Tariq Rahim provided a brief and comprehensive summary of his arguments, recognizing that some judges on the bench were hearing the case for the first time. He voiced his full support for the full court.

The Chief Justice noted the importance of focusing on the present and not dwelling on the past. Justice Ayesha Malik questioned the right to appeal under Section 5 of the Practice and Procedure Act, considering that once the full court decided on the case and established the law, where would the appeal lie.

The petitioner’s counsel assured that he would provide evidence to support his case, prompting the Chief Justice to advise him to thoroughly study the law since the nation’s time is valuable. Khawaja Tariq Rahim also referred to the 1980 Rules during his arguments.

The Chief Justice mentioned that the nation is awaiting justice in approximately 57,000 cases, urging the petitioner to read the Supreme Court Practice and Procedure Act carefully and avoid using terms not found in the law. Khawaja Tariq Rahim referred to the 1980 Rules once again.

Justice Tariq Masood inquired whether the petitioner had read the law first, emphasizing the importance of legal acumen. Justice Ajaz-ul-Hasan asked about the petitioner’s stance on the events of the past. During the proceedings, Justice Mohammad Ali Mazhar also posed questions.

Chief Justice Qazi Faez Isa advised the petitioner to avoid addressing future matters and to limit his arguments to the present. He suggested noting down the questions and answering them in the desired manner. Justice Jamal Khan Mandokhail asked whether granting authority to a three-member committee under Article 184, Section 3, is judicial or administrative.

Justice Mandokhail raised the query of whether it is an administrative authority, and if so, has Parliament ended judicial authority. Justice Ijazul Hassanremarked that there is a Supreme Court decision in which the procedure under Article 184, Section 3, is outlined, and it establishes the principle that any bench can refer a matter to the Chief Justice.

Justice Mandokhail sought clarification on the usage of Article 191. Khawaja Tariq Rahim asserted that regulating the judiciary falls under the Federal Legislative List Schedule, and the Supreme Court has the authority to regulate itself.

Chief Justice advised thoroughly reading the law before offering explanations. Justice Ata-ur-Rehman maintained that the power of regulation and authority is not mentioned in the law. The Chief Justice emphasized that the Supreme Court has the power to regulate itself and asked if they were suggesting that the 1980 Rules contradict the Constitution.

Khawaja Tariq Rahim stated that the 1980 Rules were formulated by the Full Court and are in accordance with the law. Justice Ata-ur-Rehman asked if they were implying that the law had rendered constitutional provisions ineffective.

Chief Justice recommended avoiding discussing future matters and restricting arguments to the present. Justice Munib Akhtar inquired whether Chief Justice Pakistan had said to write questions, and the petitioner replied in the affirmative, stating that the Practice and Procedure Act had eliminated judicial authority.

Parliament Has Restricted Judicial Power: Justice Munib Akhtar

In a significant exchange during the hearing, Justice Munib Akhtar highlighted Parliament’s role in limiting judicial power. He posed the question, “What is the definition of public interest, and whose interests are you representing?” Justice Ata-ur-Rehman followed up by asking, “Do you have no objections to the Chief Justice’s exercise of authority?”

Advocate Khawaja Tariq Rahim responded, asserting that Parliament had indeed exercised its authority. Justice Masroor Hilali questioned whether the petitioner believed that this legislation had curtailed the Chief Justice’s powers.

Intriguingly, Chief Justice Isa engaged in a thought-provoking conversation, stating that the petitioner seemed ready to provide answers once more. Justice Jamal Khan Mandokhail asked if the legislation had taken back the Chief Justice of Pakistan’s powers and eliminated the Supreme Court’s authority. Justice Ata-ur-Rehman inquired if the petitioner was in agreement that the Chief Justice of Pakistan is the master of the roster.

Khawaja Tariq Rahim clarified his position, saying that he was not suggesting that. Chief Justice Isa remarked, “I request my fellow judges, and you are here to assist us. If we bombard you with questions from all sides, the case won’t proceed. You should present your arguments in your own way.”

Justice Jamal Khan Mandokhail brought up the question of whether we had a law under a military ruler, questioning the legitimacy of the military ruler’s law compared to Parliament’s legislation. Chief Justice inquired if they could simply clarify whether the Practice and Procedure Act is constitutional or not.

Khawaja Tariq Rahim argued that a constitutional amendment is required to grant the right of appeal, and the Practice and Procedure Act is non-constitutional. Justice Munib Akhtar asked if the petitioner understood that the Chief Justice’s powers can be regulated through constitutional amendments. Justice Mansoor Ali Shah questioned whether they were implying that the 17-member Full Court can regulate powers but not Parliament.

Khawaja Tariq Rahim responded, stating that he was not making that claim. Chief Justice commented, “I am making a request; I have seven judges with me, and you have come to assist us. If questions bombard from all directions, the case cannot proceed. You should present your arguments your way. Read one section.”

Justice Jamal Khan Mandokhail asked, “Have we taken away the Chief Justice of Pakistan’s powers and assigned the powers of the Supreme Court to Parliament?” Justice Ata-ur-Rehman asked, “Are you suggesting that Supreme Court’s administrative powers cannot be delegated to Parliament?”

Chief Justice stated, “We have not referred to any specific constitutional article; we have not noted of our own accord. You have come forward in defense of the judiciary, and it’s good that you are speaking for my rights. But here, it’s not about anyone’s rights; it’s a constitutional matter. My fellow judges’ questions are excellent, but for now, just note down the questions.”

Justice Masroor Hilali asked, “Is this law crafted in the public interest, or is it subject to personal interests?” Justice Jamal Khan Mandokhail questioned, “Can the Supreme Court limit Parliament’s ability to legislate?”

Chief Justice emphasized, “We don’t want you to answer every question, and we are not here to argue with each other. Read one section.” Justice Munib Akhtar remarked, “My question is, can Parliament legislate in such a way?” Chief Justice responded, “You provide evidence while responding to the questions.”

Justice Ata-ur-Rehman said, “Isn’t it clear that the Chief Justice’s powers can be regulated through constitutional amendments?” Justice Mansoor Ali Shah asked, “Are you suggesting that the 17-member Full Court can regulate powers but Parliament cannot?”

Khawaja Tariq Rahim clarified, “I am not saying that.” Chief Justice Isa concluded by saying, “I am requesting you not to discuss future matters, and keep your arguments limited for now. If there’s legislation in the future, you can challenge it.”

In the arguments presented by the counsel of the second petitioner, Barrister Imtiaz Sadiq, Justice Athar Minallah remarked that the law has restricted the powers of the Chief Justice. This doesn’t affect anyone’s fundamental rights, and the affected party still has the right to appeal. Parliament has strengthened the judiciary by regulating the powers of the Chief Justice.

Justice Mansoor Ali Shah commented that there is no Chief Justice of the Master of the Rolls in the entire world. Parliament has strengthened the judiciary by enacting laws. Justice Ijaz-ul-Hassan questioned whether Parliament has the authority to enact such legislation.

Advocate Imtiaz Ali mentioned that the Full Court meeting has the power. Justice Mansoor Ali Shah asked, “If we hear cases according to our own will, would it be fine? Can we eliminate Parliament’s legislative authority over unelected judges?”

At this point, Chief Justice expressed concerns that it seems my fellow judges have turned against me on the matter of regulating powers. Justice Athar Minallah stated, “How can we stop 15 unelected judges from legislating in Parliament?”

Justice Mansoor Ali Shah asked, “Where have you been writing these questions, Mr. Imtiaz Sadiq?” which led to laughter in the courtroom.

Chief Justice responded, “We have become judgment-oriented. I have sworn under the constitution. In this country, martial laws have been imposed many times. I will not look at those decisions. There are 57,000 cases pending. Show me the constitution, don’t show me the decisions.”

Justice Athar Minallah remarked, “Article 191 gives Parliament the authority to legislate.”

Advocate Imtiaz Sadiq said, “Our Chief Justice’s powers are being divided,” to which the Chief Justice replied, “I have no objection.”

Justice Athar Minallah inquired, “Can an individual be given unlimited and unaccountable authority?” Chief Justice responded, “Let’s just identify which fundamental right has been affected.”

Advocate Imtiaz Sadiq stated that interference in constitutional powers would violate fundamental rights.

Chief Justice retorted, “In our society, every time the martial law administrator gets 98.6% of the votes. We can’t hold a referendum to check the law.” Justice Athar Minallah asked, “How is regulating the powers of the Chief Justice a violation of fundamental rights?”

Advocate Imtiaz Sadiq said, “My argument is that the law is good, but the procedure is incorrect. The judiciary should have regulated its own powers.”

Justice Mansoor Ali Shah commented, “We will address all questions from judges later. First, let the counsel complete their arguments.” Justice Ijaz-ul-Hassan questioned, “My question is, how did Parliament obtain this right?” while Justice Jamal Mandokhail asked, “How can Rules supersede the law?”

Advocate Imtiaz Sadiq said, “It is the Supreme Court’s decision that the judicial rules are above the law. According to judicial decisions, constitutional practices also fall under the constitution. The Supreme Court rules are above the law because they were created by constitutional institutions, so they have been placed above the law.”

Justice Athar Minallah asked, “Is Parliament not a constitutional institution?” Chief Justice responded, “The judgment they are referring to does not state that the Rules are above the law.”

Advocate Imtiaz Sadiq stated, “I will provide the complete decision; it will become clear.”

Chief Justice urged, “Do not fear the entire judgment; point it out, and we will read it. Even if the judgment they are referring to does not go in your favor, I can still exclude your request for saving time. I can do that even if I agree with your argument. We will give you another chance to present the arguments.”

Attorney General’s Arguments

Attorney General Mansoor Usman stated that he must go to Vienna regarding the Sindh Taas Agreement case and presented his written submissions. He assured that he would conclude his arguments within half an hour. Chief Justice remarked that an effort would be made not to question the Attorney General so that they could leave the country.

The court took a break in the hearing until three o’clock. After the break, Attorney General Mansoor Usman began presenting his arguments.

In his arguments, the Attorney General emphasized that the Practice and Procedure Act has brought transparency to this institution. This law is meant for resolving significant issues of the public. All powers are vested in this court through the law. It is correct that the judiciary’s independence concerns every citizen. The Attorney General referred to the Acts of 1935, 1956, and 1962.

Furthermore, the Attorney General argued that the 1926 Act conditions the Supreme Court Rules on the President’s prior permission, and the 1973 Act has granted independence to the judiciary, denying any other institution the authority to amend the Practice and Procedure Act. This law is exclusive to the Supreme Court. Petitions against the law are not admissible.

The Attorney General also referred to various countries, including India, Bangladesh, and the United States, stating that many nations have the authority to legislate on matters related to the judiciary. There is no difference between an Act of Parliament and the law of Practice and Procedure. Parliament has enacted the Practice and Procedure Act to ensure transparency.

Justice Yahya Afridi expressed that both parties agree to a certain extent on the importance of public interest. Chief Justice mentioned that in my opinion, my fellow judges are correct. Under Article 184, our powers are limited compared to the High Court. Justice Yahya Afridi questioned whether the petition filed against legislation violates fundamental rights.

The Attorney General argued that the case is not about undermining fundamental rights.

Justice Athar Minallah said that he is not giving a lecture but asking a question: can Parliament not legislate through ordinary legislation? Justice Ayesha Malik commented that if a committee decides, the affected party will have the right to appeal.

Chief Justice noted that you should take note of the question. What is being presented as abrogations are not abrogations but statements. You are here to assist us; we are not sitting here for your assistance.

Justice Ejaz-ul-Hassan said that Article 185 provides the right to appeal. Can the right to appeal be given through ordinary law when it is not provided in the Constitution?

Chief Justice mentioned that you should move forward. What is happening today is not abortions but statements. We also like to present American decisions as examples. Why don’t we present an example that the American Supreme Court gave its President 20 minutes? From morning till now, 150 new cases have been filed. We are sitting in air-conditioned rooms, people are dying in jails, and I am sorry to say that we take money from the pockets of the poor.

Justice Manzoor Akhtar said that I am not giving a lecture but asking a question: can Parliament not legislate like this? Justice Ayesha Malik commented that if the committee decides, the affected party will have the right to appeal.

Chief Justice stated that under Article 184(3), constitutional questions are referred to the Registrar, and objections against the Registrar’s office are heard in a Judge’s chamber. Additional principles have been established through the Practice and Procedure Act. Money is not coming in; constitutional requests under Article 184(3) are made.

Justice Ata Minallah said that amendments can be made to the rules of the three-member committee’s decision. One thing we did not do, Parliament did. Justice Ijaz-ul-Hassan said that Article 185 provides the right to appeal. How can the right to appeal be given through ordinary law when it is not provided for in the Constitution?

Chief Justice noted that you should move forward. What is happening today is not abortions but statements. We also like to present American decisions as examples. Why don’t we present an example that the American Supreme Court gave its President 20 minutes? From morning till now, 150 new cases have been filed. We are sitting in air-conditioned rooms, people are dying in jails, and I am sorry to say that we take money from the pockets of the poor.

15-Member Full Court

Under the leadership of Chief Justice Qazi Faez Isa, a 15-member full court consisting of Justice Sardar Tariq Masood, Justice Ajaz-ul-Hasan, Justice Mansoor Ali Shah, Justice Manzoor Akhtar, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Mazhar Alam Khan Miankhel, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Hasan Azhar Rizvi, Justice Shahid Wahid, and Justice Musarrat Hilali is hearing the case.

Before the hearing, a Full Court meeting under the chairmanship of Chief Justice Pakistan was held, focusing on four agenda points. During the meeting, discussions were held on undertrial cases, reference foundations, streaming of court proceedings, and guidelines to make case hearings more effective.

In the Full Court session, permission was granted for live streaming of the Practice and Procedure case. Cameras were installed in Chamber No. 1 for this purpose, while cameras in the Supreme Court’s Courtroom 1 were directed towards the gallery where the attendees were seated.

Soon after the oath-taking, Justice Qazi Faez Isa constituted a bench to hear cases related to the Practice and Procedure Act.

In April last year, Justice Qazi Faiz Isa had recused himself from becoming part of bench stating that he would not be a part of any constitutional bench until decisions on appeals challenging the Practice and Procedure Act were made.

A large number of national and international media representatives were also present in the Supreme Court.