Chief Justice of Pakistan (CJP) Qazi Faez Isa has observed that parliament passed the Supreme Court (Practice and Procedure) Act 2023 \u2014 the law seeking to regulate discretionary powers of the country\u2019s top judge \u2014 with “good intentions”.<\/p>\n
The CJP\u2019s remarks came as the Supreme Court\u2019s full court resumed hearing the petitions against the SC law on Monday. The hearing of the case is being broadcast live on state-run\u00a0PTV<\/em>.<\/p>\n During the hearing, the CJP expressed displeasure after a petitioner cited the US court\u2019s verdict as precedent to challenge the amendments in the SC law.<\/p>\n CJP Isa-led full-court bench consists of 15 judges of the Supreme Court including 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.<\/p>\n After hearing today’s arguments, the CJP adjourned the hearing till 11:30am tomorrow and asked the lawyers to keep their arguments concise.<\/p>\n Can parliament correct CJP’s mistake?<\/strong><\/p>\n At the outset of the hearing, the CJP told the petitioners’ counsels to conclude their arguments early as the top court wanted to conclude proceedings of the case today.<\/p>\n \u201cAt least cite the decision of the US Supreme Court. Our standards have stooped so low that we are now citing a verdict of a New Jersey court,\u201d the CJP remarked after Supreme Court Bar Association President Abid Zuberi quoted a verdict to defend his objections to the law.<\/p>\n \u201cThis is not even a decision,\u201d CJP Isa added.<\/p>\n CJP Isa asked if the parliament could correct a mistake made by the country’s top judge.<\/p>\n The CJP directed his question toward the Supreme Court Bar Association (SCBA) President Abid Zuberi, while he presented his arguments pertaining to one of the pleas today on behalf of the association.<\/p>\n “If a Supreme Court chief justice made a mistake, can the Parliament correct it or not?” CJP Isa asked.<\/p>\n Responding to the chief justice, Zuberi said he was just coming to Article 184 (3) and agreed that it continues to be misused.<\/p>\n The CJP asked Zuberi if Article 184 (3) was used in the right or wrong way in the past, responding to which he said it had been misused and there should be an appeal against it.<\/p>\n The chief justice said that the court is hearing the current case under the same article.<\/p>\n \u201cIf the Supreme Court expands the scope of Article 184 (3) in cases, it is right, but it is wrong if the Parliament does the same?\u201d CJP Isa asked.<\/p>\n Justice Mandokhail asked Zuberi regarding the fundamental rights that were being affected by the law.<\/p>\n Justice Minallah, in the course of the hearing, remarked that the Parliament has the power to expand or restrict the apex court\u2019s jurisdiction.<\/p>\n \u201cCan Parliament not legislate for fundamental rights?\u201d he asked, addressing the SCBA president.<\/p>\n Justice Ahsan remarked that the question in the case is that of authority.<\/p>\n \u201cTell me, no matter how good the law is, does the Parliament have the power to make rules for the Supreme Court?\u201d he asked Zuberi.<\/p>\n In his query, Justice Minallah asked if the Supreme Court is violating the right to access to justice, can the Parliament not intervene then?<\/p>\n \u201cYou have failed to argue the admissibility of this case,\u201d he said, addressing the SCBA president.<\/p>\n \u2018Our past is very rotten\u2019: CJP Isa<\/strong><\/p>\n Addressing Zuberi, both CJP Isa and Justice Ahsan delivered back-to-back and contrasting remarks regarding the Parliament\u2019s powers.<\/p>\n Justice Ahsan said there will be no end to the Parliament\u2019s powers, once the door is opened for it to interfere in the Supreme Court\u2019s matters.<\/p>\n \u201cThe constitution cannot operate like this,\u201d he said.<\/p>\n The chief justice, on the other hand, said: \u201cLook at the past, one person comes and turns the Parliament into a rubberstamp.\u201d<\/p>\n He added that all this does not happen in the US.<\/p>\n \u201cOur past is very rotten,” the CJP said.<\/p>\n Justice Hilali, meanwhile, said the door of legislation is being opened with such a clear majority.<\/p>\n \u201cThe door is being opened by directly amending the Constitution through simple majority,\u201d remarked Justice Akhtar.<\/p>\n The CJP asked Zuberi to end his arguments before taking a 20-miute break.<\/p>\n ‘CJP’s powers listed in Constitution’<\/strong><\/p>\n After returning to the hearing, lawyer Adnan Khan, who was representing a petitioned named Amir Sadiq, began his arguments, rejecting the Parliament\u2019s powers to make SC rules by act.<\/p>\n \u201cThe framers of the Constitution deliberately did not give Parliament the power to alter the rules of the Supreme Court,\u201d he said.<\/p>\n Khan added that through the SC law, the chief justice\u2019s office has been made redundant by the Parliament.<\/p>\n \u201cThe Supreme Court stands on two bases, one is the chief justice and the other is the rest of the judges,\u201d he said.<\/p>\n \u201cWhat is the need to call the full court in this case then, only the chief justice would have heard it,\u201d Justice Mandokail remarked.<\/p>\n The CJP, addressing Khan, said the powers given to the chief justice are listed in the Constitution.<\/p>\n \u201cApart from the Supreme Court, where has the chief justice been given sole powers?\u201d he asked the counsel.<\/p>\n \u201cThe Constitution says that the chief justice himself can form benches without any consultation,\u201d Khan replied.<\/p>\n He added that the powers of the CJP will be useless if two judges refuse to form a bench and only want to do chamber work.<\/p>\n Justice Minallah asked Khan which of his fundamental rights were being affected by the law.<\/p>\n \u201cParliament has no power to legislate, all fundamental rights are affected by it,\u201d he responded, adding that Article 4 of the Constitution pertaining to access to justice was being violated because of it.<\/p>\n The CJP asked Khan is there was any law or Sharia law regarding the lack of right to appeal.<\/p>\n \u201cWhere in the law or Shariah is it mentioned that the judge\u2019s decision will be final? Give me a reference,\u201d CJP Isa remarked.<\/p>\n \u201cI will submit the reference,\u201d Khan said, concluding his arguments.<\/p>\n ‘SC should hear public interest cases’<\/strong><\/p>\n In his argument, Muhammad Shahid Rana, the lawyer and petitioner himself, maintained who would the appeal go to if the 15 judges make a decision.<\/p>\n \u201cIf 15 judges will decide, then the appeal will not be [made] here, it will go to Allah,\u201d the CJP remarked.<\/p>\n The lawyer then said that appeals to the Supreme Court are made under Article 185. \u201cAn appeal under Article 185 cannot be made under Article 184.\u201d<\/p>\n \u201cWe will give you the answer to that in the decision,\u201d CJP Isa remarked.<\/p>\n He asked if all the decisions made within the scope of Article 184 (3) are correct.<\/p>\n \u201cThe Supreme Court should hear cases of public interest, not special interest, under Article 184(3),\u201d the lawyer replied.<\/p>\n ‘Parliament can legislate on Federal Legislative Entries’<\/strong><\/p>\n The CJP then summoned the attorney general to the rostrum. However, he told the SC that the Pakistan Muslim League-Quaid\u2019s (PML-Q) counsel wanted to present his arguments, after which the lawyer Zahid Fakhruddin G Ibrahim took the rostrum.<\/p>\n \u201cThe legislative authority related to the Supreme Court comes from Article 142. The Constitution also does not empower the Parliament to legislate for the Supreme Court,\u201d he said.<\/p>\n He asked the court to look at Article 191 with entries 55, 59 of the Federal Legislative List.<\/p>\n Justice Malik asked the counsel if the power to legislate on the rules been given. \u201cThere is a difference between Article 188 and Article 191.\u201d<\/p>\n \u201cIn Article 191, the SC does not have the power to make its own rules, it only recognises the right to make rules,\u201d he said.<\/p>\n Ibrahim said he wanted to present arguments regarding the right to appeal before the court took a lunch break.<\/p>\n \u201cParliament has the power to legislate on Federal Legislative Entries under Article 142 (2),\u201d the lawyer said, after the hearing resumed.<\/p>\n \u201cArticle 191 under legislative authority says Supreme Court rules can be changed by law,\u201d Justice Shah remarked.<\/p>\n \u2018Slave of the Constitution\u2019<\/strong><\/p>\n Justice Ahsan asked how was the scope of the law expanded by giving the right of appeal and how something can be added to the SC\u2019s jurisdiction through legislation.<\/p>\n Justice Mazhar also inquired if the jurisdiction\u2019s extension can be read in conjunction with Article 175 clause (4) or not.<\/p>\n \u201cIs the appeal a matter of law or is it a fundamental right?\u201d Justice Ahsan asked.<\/p>\n \u201cAppeal is a fundamental right, Islam also grants it and the right should be given,\u201d the lawyer said.<\/p>\n