Every institution is responsible for conducting self-accountability, remarked Chief Justice of Pakistan (CJP) Qazi Faez Isa on Tuesday as the top court resumed hearing on petitions challenging the Supreme Court (Practice & Procedure) Act 2023.
The hearing was adjourned till today (Wednesday) after the Muttahida Qaumi Movement-Pakistan’s (MQM-P) counsel Faisal Siddiqi completed arguments in favour of the law. The Pakistan Bar Council (PBC) and attorney general of Pakistan (AGP) are due to present arguments at the next hearing.
Questions have been raised on parliament’s competence to regulate the administrative workings of the Supreme Court (SC) as well as transparency in the workings of the judiciary in previous hearings.
The law in question, passed by the parliament in April 2023, regulates discretionary powers of the chief justice of Pakistan (CJP) by requiring a committee of three senior judges of the apex court, including the CJP, to form benches for constitutional matters of public importance and taking suo motu notice.
A full court led by CJP Qazi Faez Isa and comprising Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Mazahar Ali Akbar Naqvi, Justice Jamal Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali, has taken up nine review petitions against the 2023 Act.
The petitioners view the law as an attempt to clip the powers of the CJP and pave the way for parliament’s interference in the internal workings of the apex court. Today (Tuesday) was the fourth hearing on the matter, which has been live telecasted since the proceedings began. The court intended to conclude the case but the hearing was adjourned due to time constraints.
At the outset of the hearing, Faisal Siddiqi contended that the petitions should be dismissed on merit while acknowledging that they were maintainable. He maintained that an intra-court appeal was “liberating” and both the apex court and parliament could provide for them.
At this, Justice Ahsan said that the basic principle was that an appellate for the right of appeal is provided by the statute which conferred the jurisdiction in the first place. Here, it is the Constitution creating the statute and if the right to appeal is provided it should be provided by the same jurisidiction – the Constitution – and not by a sub-constitutional legislation, he said.
During the hearing, CJP Isa expressed regret that despite four hearings, it was the court’s performance that the case had not concluded. At one point, he asked his fellow judges to allow the counsel to complete his arguments when Justice Akhtar questioned Siddiqi in the middle of his argument.
This prompted Justice Akhtar to register his own objection at being “interrupted all the time”. When asked by the CJP whether any political party voted against the law under review, Siddiqi apprised the court that the Pakistan Tehreek-e-Insaf (PTI) had opposed in the Senate.
The CJP also questioned whether the SC rules were binding on an apex court bench. Siddiqi replied in the affirmative.
Meanwhile, Justice Minallah noted that the separation of powers was limited to the judiciary. “What if the judiciary starts encroaching upon the powers of the legislature…so the Parliament is empowered to legislate and all that they have legislated is something that ensures access to justice,” he asked.
Justice Hilali observed that excercising of jurisdiction under Article 184 (3) of the Constitution had shaken the fundamentals of the country. At one point, CJP Isa remarked that all power would be vested in the CJP, not in the full court because the latter would be dependent on whether the former calls a meeting for it or not.
He asked whether parliament could be intervened if the CJP does not summon a meeting of the full court to ammend SC rules. Siddiqi argued that the independence of the judiciary would not be threatened if the role of the CJP was reduced.
He contended that there was nothing in the law in question which made the parliament the master of the roster. “In terms, there is no constitutional provision that gives this elated position to the CJP…for example giving the power to constitute benches to a three-member committee, how does that violate the independence of the judiciary?”
During the hearing Justice Ahsan remained consistent that if the right to appeal was provided under Article 184 (3) then the Constitution should be amended.
Meanwhile, Justice Akhtar observed that the problem is not the creation of the committee of three senior judges but the fact that it was created by parliament, which made the legislature the master of the roster.
The CJP observed that every institution was responsible to conduct self-accountability.
