• PML-N says it’s not appropriate for ‘selected’ bench to hear case on suo motu powers
• AGP says copies of parliamentary proceedings may be furnished today
• PTI threatens high treason cases against caretaker govts

ISLAMABAD: The Supreme Court on Monday grilled the government regarding its insistence on the formation of full court to hear the case pertaining to suo motu powers of the chief justice, with Justice Ayesha A. Malik wondering whether the government intended to “get the benefit of the internal meetings of the judges” regarding the administrative affairs of the court.

During the hearing, the PML-N, in its plea submitted by lawyer Salahuddin Ahmed, asked the eight-member bench not to hear the case, since the bench was “selected” and headed by Chief Justice Umar Ata Bandial.

Justice Malik, part of the eight-member bench, said it appeared the government intended to get the benefit of the internal meetings of judges on regulating the court’s administrative affairs since such matters were discussed by all the judges in the full court meetings.

“All the time the court hears cases relating to vires and the legislative competence of a law, but we need to draw some line otherwise whenever a case relating to the independence of judiciary and legislative competence will come up, a request for the full court will be raised,” the judge observed.

Justice Malik said she was struggling to understand whether the order of a bench hearing such cases would not be good if rendered by a three-judge bench, but will be fine if given by the full court.

“Will the government even ask the high court to constitute the full court when such matters land in the high courts,” Justice Malik asked. If this logic prevails, it has to be applied everywhere, she added.

Justice Munib Akhtar reminded the attorney general that when parliament has itself answered in the law by stating that at least a bench consisting of five judges should interpret matters relating to procedures of the court then the plea being raised for the full court would mean that the parliament was wrong.

“The weakness of the government on counting is increasing,” Justice Akhtar observed, asking the AGP to notice eight judges were hearing the matter rather than five, which the law asked for.

The AGP argued that the questions involved in the matter were a case of first impression and therefore the fairest and most transparent course would be adjudication by all judges.

According to the AGP, the importance of the case at hand was critical as it required the power of the legislature to regulate the practice and procedure of the judicial organ on one hand and the constitutional command to secure the independence of the judiciary on the other.

The moot point in the matter, Justice Ijazul Ahsan reminded, revolved around legislative competence — an issue which was examined by courts every day.

When the AGP referred to a 1978 case where LHC CJ Sheikh Anwarul Haq constituted a full court of nine judges when former prime minister Zulfikar Ali Bhutto objected to the composition of the bench, Justice Bandial reminded that then it was a case of bias but former CJP Jawad S. Khawaja had already held that it was for the judge to decide about when such an objection was raised.

The AGP also apprised the court that the copies of the proceedings of the standing committee as well as parliament on the passing of the Supreme Court (Practice & Procedure) Bill, 2023 as directed by the court would likely be furnished on Tuesday (today).

‘Selected’ bench

The PML-N, in its plea submitted by Barrister Salahuddin Ahmed, asked the bench not to hear the case regulating the practice and procedure of the court, since the bench was “selected” and headed by CJP Bandial.

“The matter involves devolving and sharing the discretionary powers of the CJP himself — especially in relation to the formation of benches,” the plea said.

“In the circumstances, it would not at all be appropriate for the matter to be heard by an eight-member bench that is both selected (and headed) by the CJP,” contended Mr Ahmed.

At this, Justice Muhammad Ali Mazhar could not help but wonder whether the counsel has any concerns about the members of the bench.

After the argument of the AGP, Mr Ahmed recalled that the request of the full court was acceded to in 2019 in the Justice Qazi Faez Isa case, but Justice Ahsan reminded that in that case, the CJP was not heading the bench which was why the full court was constituted.

The counsel then read out the order to explain that direction was issued for the constitution of the full court to promote transparency in the hearing. “Invariably when the matter was complex, usually the court refers the matter to the full court.”

The CJP recalled that in the 2010 Iftikhar Chaudhry and 2019 Justice Isa cases, the president had referred the matter to the Supreme Judicial Council while levelling serious allegations against the judges. This affected the independence of the judiciary and the entire Supreme Court was on trial, he argued. But both the references, in the end, were quashed, he added.

The PML-N argued before the court that numerous sitting judges of the apex court as well as several retired judges over the years had openly voiced their reservations about the manner in which benches were constituted in the apex court. In the circumstances, the constitution of a full court will ensure justice was not only done but seen to be done and will protect the credibility of the apex court.

The PML-N also contended that it was for the first time in the history of Pakistan that an act of parliament has been restrained through interim order from coming into effect that too before the law got enacted.

Later, while talking to the media outside the Supreme Court, PTI leader Fawad Chaudhry declared that whenever the party would come to power, it would initiate high treason proceedings against the caretaker set-ups in Punjab and KP for working beyond their 90-day mandate.

Published in Dawn, May 9th, 2023