SC Practice and Procedure Act full court hearing
ISLAMABAD (ANN): The full court headed by Chief Justice of Pakistan Justice Qazi Faez Isa Monday adjourned the hearing on a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023, aimed at clipping the powers of the CJP regarding taking suo motu actions and forming the benches, till October 3.
After the hearing resumed after the second short break, Khawaja Tariq Rahim asked the court to give him two days time to submit written replies to the 22 questions asked during the hearing.
CJP remarked that they wanted to wrap up the case today but it seems not possible. He asked the other lawyers how much time they needed to submit their arguments.
Then the court adjourned the hearing till October 3 and asked the lawyers to submit their replies by September 25 and asked all the lawyers to remain present in the next hearing.
After discussing the matter with the two most senior judges, Justice Ijazul Ahsan and Justice Tariq Masood, CJP said that he would constitute the benches for next week’s hearings of the different cases in the apex court.
For the first time in the apex court’s history, the PTV live-streamed the full court proceedings.
At the outset of the hearing, the federal government requested to reject the petitions against the Supreme Court (Practice and Procedure) Act.
Taking a stance, the federal government said that the petitions against the law of the Parliament are inadmissible, so the petitions should be dismissed.
The federal government also submitted a written reply to the Supreme Court, according to which Parliament could legislate under Article 191 of the Constitution, and Article 191 does not prevent Parliament from making laws.
The Independence of the judiciary is not affected by the SC (Practice and Procedure) Act and no power has been withdrawn from the Supreme Court under the Act.
Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Mazahir Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musrat Hilali are part of the 15-member full court headed by Chief Justice Qazi Faez Isa.
Before the hearing, a full-court meeting was held under the chair of the Chief Justice of Pakistan to deliberate on a 4-point agenda.
In the meeting, the 4-point agenda including pending cases, cases heard on a priority basis, live streaming of court proceedings, and guidelines for effective hearing of cases were reviewed.
Live streaming of the SC Practice and Procedure case was allowed in the full court session for which cameras were installed in Courtroom No. 1 while cameras were also installed in the gallery of courtroom one.
Four PTV cameras were facing the bench while the fifth camera was facing the audience sitting in the courtroom.
A large number of lawyers were present in the courtroom while all the seats in Courtroom No. 1 were filled.
A large number of domestic and foreign media representatives were also present in the Supreme Court.
At the outset of the hearing, CJP Qazi Isa while addressing the lawyers said, “Appreciate that some of us have heard this matter and some of us are going to hear it for the first time.”
Justice Isa said that since one member of the bench had retired there was a matter of reconstituting the bench. “A question had also arisen whether I should be a part of the bench. Then the related question that all those who will become CJP should become part of the bench, so I think the best way to resolve it was to constitute a full court if you agree.”
Requesting the lawyers to keep their arguments brief, the CJP said “We will first hear Advocate Khawaja Tariq Rahim.”
As Khawaja Tariq set the proceedings into motion, Justice Ayesha asked what would happen to Section 5 in the event the law was upheld. “There is a right of appeal that is provided under this law. How do you visualise that right being exercised,” she asked.
Justice Isa then asked Khawaja Tariq Rahim to read the law out loud. However, the lawyer kept getting sidetracked, with the judges repeatedly telling him to reading the Act.
“The country expects 57,000 cases to be decided. We would love to hear you. But let’s focus on your petition and proceed with your arguments,” CJP Isa remarked. Khawaja Rahim then proceeded to read out the Act.
However, he again stopped reading out the law and said, “Framing of these rules, under Article 191, is the prerogative of the SC. When they framed the 1980 rules, the entire court sat together and together they framed the rules.”
Article 191 reads: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.
“This intrusion by the Parliament into the affairs of the SC prompted me to come forward and file this petition. Because I feel that every institution must remain in its domain,” Rahim said.
Justice Naqvi, however, wondered whether the lawyer was suggesting that he did not have any objection to the “unaccountable powers in one office”.
“Is that your question? Are you supporting what has happened in the past? What is your legal proposition?” he asked. CJP Isa again asked Rahim to read the Act out loud.
“You read the Act. Either you say this entire Act is ultra vires the Constitution, that’s one contention […] You don’t need to respond to every query immediately, it will make your life very difficult […] when you are done with your arguments, you can absorb the questions and respond,” Justice Isa said.
In the middle of reading out the Act, Rahim said that Parliament should not have a say in functions that lay with the top court. He said that tomorrow Parliament could order that a particular bench hears a case.
“Let’s not go into what they may or may not do, what Parliament decides to do in the future, you can bring another petition and we can look at it then. Just restrict yourself to your case,” CJP Isa interjected.
Khawaja Rahim also referred to the 1980 Rules.
Justice Tariq Masood said that he should read the law first, it would be a great kindness of him, while Justice Ijazul Ahsan said which role he is referring to.
Justice Athar Minallah said ‘Khawaja Sahib, you came to the legal issues, which happened in the past, do you support it’. Justice Muhammad Ali Mazhar also questioned during the hearing.
Chief Justice Isa told Rahim that if there is a question from every side, he would find it difficult to answer, he should not answer the question immediately, note the questions and then answer, give arguments as he wants. .
Justice Jamal Khan Mandokhel remarked that he should read Article 191.
Khawaja Rahim said that the power to regulate the court belongs to the Supreme Court under the Federal Legislative List Schedule.
The Chief Justice remarked that first read the law and then interpret it. He said that the Supreme Court has its own power to regulate its powers. Are you saying that the 1980 Rules are inconsistent with the Constitution, the CJP asked the lawyer.
Khawaja Tariq Rahim said that the rules of 1980 were framed by the full court and those rules are correct.
Justice Minallah said, “Do you want to say that the Constitution and the law have been rendered ineffective by this law?”
The Chief Justice remarked ‘you should not talk about the future and limit your arguments to the present, if the legislation is enacted in the future, you will challenge it again’.
Justice Munib Akhtar said that allowing the 3-member committee to have the power of Clause 3 of Article 184, is it a judicial power or an administrative one.
He further raised the question that if there is an administrative authority, has the Parliament abolished the judicial authority?
Justice Ijazul Ahsan said that there is a decision of the Supreme Court in which there is a procedure for the use of Article 184. In this decision, the principle was laid down that a bench can refer the matter to the Chief Justice for the use of Article 184, Clause 3. .
Justice Munib Akhtar said that Chief Justice of Pakistan said to write down the question, the judicial authority has been abolished by the Practice and Procedure Law, the Parliament has blocked the path of judicial power by making a law.
The Chief Justice remarked that what is the definition of public interest and on whose behalf are you arguing?
Justice Minallah said, “Do you have any objection to exercising the inevitable powers of the Chief Justice?”
Leave a Reply