The Supreme Court Wednesday reserved the verdict on the pleas challenging the law — SC (Practice and Procedure) Act 2023 — curbing the chief justice of Pakistan’s powers, with the decision expected later today at 5:30pm.
“We will discuss amongst ourselves [now]. If there is a consensus, then we will announce it, otherwise, the decision will be reserved,” Chief Justice of Pakistan (CJP) Qazi Faez Isa said as the full court bench concluded the hearing.
The law gives the power of taking sou motu notice under Article 184(3) to a three-member committee comprising senior judges, including the chief justice, instead of the CJP alone.
All the petitioners, including the political parties, have completed their arguments. Except for the Pakistan Tehreek-e-Insaf (PTI), all political parties have rallied support for the act.
The Supreme Court Bar Association has opposed the act, while the Pakistan Bar Association has extended its support.
CJP lead the full-court bench consisting of Justice Sardar Tariq Masood, Justice Ijaz Ul 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 heard the case.
Before concluding the hearing, the CJP had urged that Parliament and Supreme Court should not be pitted against each other, saying that the legislative body is not the enemy of the people and both institutions should “live and let live”.
Neither the Parliament nor the Supreme Court consider each other enemies, the chief justice said.
“Do not pit the Parliament and Supreme Court against each other,” he remarked, insisting on the idea of “live and let live”.
“Why do we see each other’s institutions negatively? Why can’t it be said that one institution legislated for the betterment of another?” CJP Isa questioned.
He maintained that cases, in the long run, will be affected if the full court writes everything about the future in the judgment. “Let go of the future and look at what’s in front of you.”
The SC (Practice and Procedure) Act 2023 was enacted on April 21, 2023, but an eight-member bench constituted by former CJP Umar Ata Bandial issued a stay order on it on April 13 after holding five hearings on the matter.
Following the stay, four benches were constituted under Article 184(3) of the Constitution.
Two of these benches were a review bench constituted to hear the case of general elections all over the country on the same date, and a larger bench to hear the case of military trial of the civilians.
During the stay, now-CJP Isa and Justice Tariq recused themselves from hearing the civilians’ military trial case as a verdict on the SC law hadn’t been issued.
Moreover, the other two benches constituted during the stay included the SC bench in the audio leaks inquiry commission case.
CJP Isa headed this bench at a hearing on September 18, right after he took charge as the top judge. This bench has conducted three hearings so far.
It may be noted that no case under Article 184(3) has been fixed in the SC before the verdict on the SC (Practice and Procedure) Act 2023.
Before the attorney general began his arguments, the chief justice jokingly said: “You are last but not the least.”
Responding to the CJP, Awan said: “I have given arguments for the case to be heard.”
The AGP said he will respond to the three questions raised during the course of the hearing.
“I will talk about Article 191 and the independence of the judiciary,” he said.
The AGP said he will argue about the Parliament being the master of the roster, the right to appeal and the question of appeal against the decision of a full court.
“The fundamental rights enshrined in Articles 14, 20, 22 and 28 are exercised in accordance with the law,” Awan said, addressing judges of the apex court.
He added that the right to privacy is regulated by law and also spoke about Article 191 empowering Parliament to legislate.
“Are you saying that the word law in Article 191 is different from the use of this word in other constitutional provisions?” the chief justice asked the AGP.
The authority to legislate on the High Treason (Punishment) Act and the Right to Information Act was derived from constitutional provisions, the AGP said.
He mentioned that the Parliament, in these laws, did not rely on the Federal Legislative List.
“Since the Constitution was enacted, no amendments have been made to Article 191,” he said, emphasising that not amending the aforementioned article ensures the judiciary’s independence.
Justice Akhtar remarked that the approval of rules was in the hands of the president or governor-general according to the Constitution of 1956.
“According to you, the Parliament is allowed to amend the rules. If your argument is to be accepted, then why did the Parliament not approve the SC rules before this?” the apex court judge asked Awan.
“Exercising the power does not mean that the power of the Parliament has lapsed,” AGP replied.
He added that the Parliament not amending Article 191 does not mean it is surrendering its authority. “Article 191 contains the word law under which the Practice and Procedure Law is made.”
Justice Ahsan remarked that the SC law has impacted the independence of the judiciary.
“The word law is used 200 times in the Constitution, will it have the same meaning?” he said, questioning Awan.
Responding to the judge, the AGP said that laws are either made by the Parliament or by judges.
Justice Akhtar remarked that there cannot be any legislation that takes away fundamental rights as per Article 8.
The AGP, however, said that the Parliament has the power to legislate under Article 191.
“Parliament cannot legislate against independence of judiciary,” he said.
“The real question is the independence of the judiciary,” Justice Ahsan asked.
Justice Mandokhail asked whether the act is weakening or increasing the independence of the judiciary.
“I will answer these questions based on the principle of separation of powers and the independence of the judiciary,” the AGP replied, maintaining that the law is not against the independence of the judiciary.
“Mr. Attorney General, these words are not only law, but subject to law,” Justice Minallah said.
Article 191 is different and the rest of the articles you are referring to are different, remarked Justice Akhtar. “The articles you have referred to are fundamental rights.”
The AGP, in response, said that the demand not to exercise the power cannot be construed as the termination of the Parliament’s power.
‘Why provincial assembly cannot enact laws?’
Justice Akhtar asked the AGP why the provincial assembly cannot enact laws.
The CJP raised a question about Constitution makers deliberately using the word Parliament or Law.
He added that they have created the Constitution as a strong book that can be used when needed.
Justice Mazhar asked the AGP about the usage of the word “law” in Article 191.
“In Article 191, law shall mean an act of Parliament,” Awan replied.
Justice Ahsan remarked that the framers of the Constitution could also have said that the SC would make its own rules until any legislation was passed.
“It is not clear from the intention of the framers that the SC rules can be changed by legislation,” he added.
Justice Ahsan said Article 191 has nowhere written that a law will be made and rules will be made under it.
“The word law in Article 191 does not include the 1956 rules,” the AGP said.
CJP Isa remarked where does the Consitution mention that court decision will also be law.
“Adherence to court decisions and their implementation is essential,” he remarked.
“The power to make rules has been given by the constitution to the executive, judicial and Parliament. Are the rules of the executive and Parliament laws?” Justice Ahsan asked.
The AGP, later, stated that the rules of the executive and Parliament have the status of law. “Rules are laws but they shall not be called laws as used in Article 191.”
“The last rules of the Supreme Court were made in 1980, this means the Parliament was sleeping for 43 years?” Justice Naqvi asked.
Awan said it is possible that if the pending cases increase in the Supreme Court, Parliament will have to make another law.
Justice Afridi said there are mistakes in both the Supreme Court and the Parliament.
“The SC is an establishment and a Titanic, how can it be turned around here and there at once?” he remarked.
“Why did Parliament remember to enact this legislation after so many years? Was the purpose of the Parliament’s legislation intended to divide the power of an individual?” Justice Mandokhail asked the AGP.
He added that the Constitution does not mention who will make the bench.