Chief Justice of Pakistan Qazi Faez Isa on Monday ruled that a three-member committee, including himself and the two most senior judges, will decide bench formations as the apex court began hearing a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023.
The Act requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court. In a pre-emptive move, the Supreme Court — then led by former CJP Umar Ata Bandial — in April had barred the government from implementing the bill seeking to curtail the chief justice of Pakistan’s powers once it became a law.
In a first, the hearing today was broadcast live on television with all 15 judges of the top court presiding over the case.
After hearing arguments from two lawyers and Attorney General for Pakistan (AGP) Mansoor Usman Awan, the court adjourned the hearing to October 3, with CJP Isa directing the parties’ lawyers to submit their written arguments by September 25.
Dictating his order, the chief justice said: “In view of the challenge thrown to the Supreme Court (Practice and Procedure) Act 2023 and as the matter is pending adjudication. We will be consulting with two senior colleagues with regard to the constitution of benches,” adding that senior puisne judges Justice Sardar Tariq Masood and Justice Ijazul Ahsan agreed with him too.
Shortly thereafter, the court roster for this week was issued with five benches. The rosters were decided by CJP Isa in consultation with the two senior-most puisne judges.
Shortly after taking oath on Sunday, CJP Isa — whose 13-month tenure will end in Oct 2024 — had formed a full court to take up the set of pleas challenging the legislation.
Headed by CJP Isa, the bench consisted of Justice Masood, Justice 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.
Before the hearing began, the federal government urged the top court to dismiss the pleas challenging the law.
In a detailed reply submitted by AGP Awan, the government contended that the petitions challenging an act of Parliament were inadmissible.
At the outset of the hearing, the lawyers arguing the set of the pleas came to the rostrum.
Addressing the lawyers, Justice Isa said, “Appreciate that some of us have heard this matter and some of us are going to hear it for the first time.”
He 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 […].”
Advocate Khawaja Tariq Rahim kicked off the arguments in the case, with Justice Ayesha asking 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 Rahim to read the law out loud. However, the lawyer kept getting sidetracked, with the judges repeatedly telling him to read the Act.
“The country expects 57,000 cases to be decided. We would love to hear you. But let’s focus on your petition […] proceed with your arguments,” CJP Isa remarked. 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 hear 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. restrict yourself to your case,” CJP Isa interjected.
Justice Akhtar then wondered if Parliament could whittle down judicial power under Article 184(3) by providing that a committee, comprising three senior judges, be formed to decide the constitution of benches.
Article 184(3) of the Constitution sets out the SC’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
In this connection, Justice Minallah further pointed out that since this power earlier resided solely with the chief justice, an argument was raised that the outcomes of cases could be influenced by constituting benches and this eroded the independence of the judiciary.
“If this argument is accepted, then the earlier traditional model would be acceptable to you that one person can actually control the outcome of cases by the constitution of benches and this probably was the mischief that the Parliament wanted to address?” he asked.
Here, Justice Ahsan referred to a previous SC judgement, which he said that had given a verdict on the procedure to be followed by the chief justice to invoke the SC’s jurisdiction under Article 183.
“It says where a bench […] comes to a conclusion that there is a matter of public importance affecting fundamental rights, they may recommend to the honourable chief justice that a bench be constituted.
“And the chief justice, after perusing the reasons that the bench assigns for recommending may or may not [proceed with its suggestion]. But at least he would record why he thinks he disagrees with the recommendations,” he said.
Justice Akhtar then said, “It seems to me that the power to constitute the bench is the subject matter of Section 2. Constituting a bench does not block the exercise of judicial power. It simply determines which is the bench that is to exercise the judicial power.”
He then remarked that Section 3 of the Act seemed to go beyond this. “It actually confers on the three-member committee, exercising administrative powers, to actually block the exercise of judicial powers.
“It is not a question of constitution of benches […] The question here, it seems to me, is the very blocking of the judicial power itself and [can] Parliament do that,” Justice Akhtar said.
During the hearing, Justice Hilali wondered if the office of the CJP would become “redundant” after the passage of the Act. Justice Mandokhail also asked whether the powers of the SC had been curtailed or the powers of the CJP.
In his arguments, after much prompting from the CJP Isa, Rahim said that Sections 5, 6 and 7 were ultra vires the Constitution. At one point, the CJP again reminded the lawyer that he could note the questions put forth by the court and answer them once he was done reading out the Act.
He took exception to the lawyer’s argument thus far, saying that he had not referred to the Constitution at any point. “Stick only to constitutional arguments,” he said.
Advocate Imtiaz Rashid Siddiqui then came to the rostrum and said that the fundamental question was whether Parliament had the power to promulgate this Act or not.
“No, that is not the fundamental question, with utmost respect. The primary question is whether Article 184(3) can be invoked. First, you overcome that hurdle and then you argue that,” he told the lawyer.
“You have filed a petition not in the normal jurisdiction, you have come in the original jurisdiction of the SC which is not a right. You have to comply with certain provisions of the Constitution,” CJP Isa said.
At that, the lawyer began referring to a previous court judgement but was interjected by the CJP.
Justice Isa explained to him that the court sought his arguments on the invocation of Article 184(3), under which two primary points were to be established: that the case was a matter of public interest and it sought the enforcement of fundamental rights.
He further said that had the high courts been moved on the matter prior to the SC and it had allowed the pleas, then “you would have come to us in the appellate jurisdiction”.
But the petitioners had opted to move the court under Article 184(3), which had a narrow scope, he added.
Despite this explanation, when the lawyer proceeded to refer to previous judgements, the CJP asserted that the judgements were secondary to the Constitution.
He then asked the lawyer to read out Article 189, which says: “Any decision of the Supreme Court shall to the extent that it decides the question of law or is based upon or enunciates a principle law be binding upon all other courts in Pakistan.”
The CJP pointed out that the phrase used in the provision was “all other courts”, not the SC. “So don’t cite our own precedents to us. You are being asked a constitutional question,” he said.
Justice Minallah then said that Parliament had diluted the chief justice’s discretionary powers. “That is all Parliament has done. It picked three judges. No one has come from the outside. It’s still the chief justice and the two senior-most judges. No one’s fundamental rights are being affected, instead institutional independence is being strengthened,” he said.
He further said that a right of appeal was being provided under the new law. “So which fundamental rights of the petitioner have been violated under which you have [approached the court] under Article 184(3)?” he asked.
Siddiqui contended that the entire Act was ultra vires the Constitution as “this domain was not available to Parliament”.
However, Justice Minallah asked the lawyer to clarify whether he thought this was a much-needed law but thought that Parliament did not have the power to legislate on the matter.
When the lawyer answered in the affirmative, the judge asked him to explain whether the status of SC rules was higher or lower than Parliament.
However, in his later arguments, the lawyer said he did not accept that this was a good law. “I think the idea is good,” he said.
At this, Justice Minallah asked whether the lawyer thought that the chief justice should have unbridled powers.
Siddiqui said that under the trichotomy of powers, Parliament, the executive and the top court were to make their own rules. “Those rules have a constitutional post and [on] a higher pedestal than ordinary law.”
When the judges again asked Siddiqui which fundamental rights were being violated, he specifically said those under Articles 9, 10 and 10-A.
“My proposition is that the legislature is bound by the scheme of the Constitution, and the Constitution requires that the legislature will make its own rules. There are three organs of the state and they will function independent of one another,” Siddiqui said.
“It is my fundamental right to ensure and protect that this constitutional encroachment is not made by Parliament. And these are judgements on the issue which say that these are issues of violation of fundamental rights […] and if it affects a large community of people then it is a question of public importance,” he said.
However, CJP Isa again pointed out that the counsel was not developing his arguments and was stating articles of the Constitution.
At one point, Siddiqui said that the question of fundamental rights being violated was raised when Parliament did not follow due process when legislating and if there was evidence of “constitutional deviation”.
Justice Akhtar then asked whether the independence of the judiciary was a fundamental right and whether the independence of the judiciary was not a salient feature of the Constitution.
He asked whether each time a full court was constituted, whether it was given a “blank slate” to disregard settled law and fundamental rights. “Is this even in the power of the full court? If we are to do that, disregarding previous precedents, then surely we have to have weighty reasons to declare, for example, that independence of the judiciary is not a salient feature of the Constitution,” he said.
He wondered if Parliament could pick and choose which judges were included in the committee. “Today, Parliament says no less than five judges to hear Section 4. Tomorrow it says that family matters are not to be heard by less than seven judges. Is that part of access to justice?” he asked.
“As the SC, the defenders of the Constitution, are we to allow any erosion of the independence of the judiciary? Will that not be the grossest violation of fundamental rights?” he wondered.
At this, Justice Minallah stated that the independence of the judiciary was not just an external aspect. “Independence of the judiciary is not just the external aspect. The most important are internal independence and institutional independence. Now you have conceded that this law actually secures internal and institutional independence,” he said.
He said that if the CJP had the rights which could be used to achieve certain outcomes in cases, then that was a “complete erosion of the independence of the judiciary — an aspect which this court has never taken into consideration”.
Justice Shah said that countries like Nepal used a ballot to determine benches, noting that the chief justice did not have any say. “So this law is making these things clearer and improving independence [of the judiciary],” he said.
At one point, Justice Minallah said Advocate Siddiqui was perhaps confused and there was a need to understand that the powers of the CJP were different from the jurisdictional power of the SC.
“This entire law has not touched the power of the Supreme Court. It’s only the chief justice, and the chief justice, not the Supreme Court.”
But the lawyer argued against it, saying the law had “obliterated” rule 9.
“The chief justice himself said in his judgement that benches cannot be constituted as per rule 9 when they have been constituted by the chief justice,” he said.
Asked whether the CJP could be separated from other judges in the SC, the lawyer said “no”.
“Then how was the power given to the CJP [alone]?” the court asked.
To that, the lawyer said: “Sir, you surrendered … you authorised the chief justice and agreed to oblige with his decision.”
At that, Justice Mandokhail pointed out to him that the judgements were passed on the basis of rules before the Act under discussion was made.
“Now there is an Act. Are the judgements superior to the act?” he asked.
At that, the lawyer argued that the judges themselves said in their rulings that the rules were on a “higher pedestal”.
Justice Ahsan then observed: “If this court interprets the law in a certain way — the law, an ordinary law — and the parliament changes that law, nobody has stopped them from doing that [in retrospect] … The distinction here is that the rules which have been framed in 1980 in the exercise of powers under Article 191 of the Constitution are not interpreting any ordinary law which can be changed by any ordinary legislation.
“This power has been exercised under the Constitution and it says so specifically ‘in exercise of powers under Article 191 of the Constitution of Islamic Republic of Pakistan the Supreme Court makes the following rules’.”
So, he explained, if the SC interpreted a law that the parliament then decided to change, it may do so.
“Because they have made the law, they can change it,” he said, adding that likewise, the SC too could change the rules it made.
This aligned with the doctrine of separation of powers and trichotomy of powers, he added.
After Advocate Siddiqui’s arguments, the court took a short break and resumed the hearing with AGP Awan presenting arguments on the maintainability of the pleas.
AGP argues maintainability of pleas
The AGP said his arguments for the rejection of the petitions centred on their “failure to meet the test criteria under Article 184(3), which is that the matter must be of public importance and it must relate to the enforcement of fundamental rights”.
“In so far as public importance is concerned … this law, in fact, deals with the concentration of powers … in one office,” he said, adding that the Act endeavoured to “democratise this institution, bring more transparency and structure the discretion”.
He further said the law dealt with issues that were important for the public — which were the litigants.
As far as the independence of the judiciary was concerned, he said “no external element, which is to say that no other institution, [was] given any role whatsoever under this Act in so far as practice and procedure of this court is concerned. It is all confined within this court”.
That also sufficed to establish the lack of any basis to challenge the Act under the purview of the violation of fundamental rights, he contended.
He added that the Act addressed public concerns.
At that, Justice Ahsan said both parties agreed that there was a question of public importance.
“The only question now is whether a fundamental right has been violated, and if a fundamental right has been violated, which one,” he said.
Justice Isa further noted that a law was “sustainable unless otherwise proven”, saying that the burden of proof was on the one who challenged the law in this case.
When Justice Afridi asked him to elaborate on the distinction between the enforcement of fundamental rights and the infringement of fundamental rights, he explained that the petitioner was required “to show is that this law does not in fact enforce this right of access to justice”.
Justice Yahya then asked him whether the petition in question talked about the enforcement of fundamental rights.
To that, the AGP said the petitioners’ argument was that the CJP’s powers had been curtailed under this law which made it unconstitutional.
But it was not the case here, he said, adding that the Act did not, in any way, prevent the enforcement of any right.
Here, Justice Shah said it could be that enforcement and infringement were being used interchangeably.
At one point, Justice Akhtar observed that since Pakistan had a federal structure, the National Assembly and provincial assemblies must remain within their constitutional limits.
“It seems to me that if the parliament or the provincial assembly makes a law that is ultra vires, it is in the public interest to challenge that law. Because if remaining within the constitutional limits is in the public interest then going beyond those limits and making an ultra vires law is surely a breach of public interest,” he reasoned.
On this, the CJP was of the view that the fundamental question here was not if the law was unconstitutional but whether it was within the parameters of Article 184(3).
For his part, the AGP contended that clause 3 of Article 184 required that a matter of public importance related to the enforcement of fundamental rights.
Following that, Justice Malik raised the question of how could a party appeal the full court’s decision if it decided that a plea was not maintainable.
“Are they not entitled to their appeal in the event that the court decides that these petitions are not maintainable? They cannot challenge it? Does that not go the fact that once again you have put the burden on the court itself to decide when it wants to constitute a full and block that right of appeal and when it wants to constitute a smaller bench and allow that right of appeal?” she questioned.
Law limiting CJP’s powers
The previous government of PDM had enacted the Supreme Court (Practice and Procedure) Bill 2023, aimed at limiting the powers of the top judge. The legislation deprives the office of the CJP of powers to take suo motu notice in an individual capacity.
The law states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP. Additionally, it adds to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases.
On April 13, an eight-judge SC bench headed by former CJP Bandial had suspended the enforcement of the Supreme Court (Practice & Procedure) Act, 2023.
When the law was suspended, Justice Bandial had observed that the court had great respect for the Parliament but it also had to examine if any constitutional deviation, violation or transgression had taken place while enacting the legislation.
The petitioners in the case had pleaded before the apex court that the concept, preparation, endorsement and passing of the law was an act tainted with mala fide. Therefore, the bill should be struck down after declaring it to be without lawful authority and of no legal effect, the petition contended.
Moreover, they said the federal government could not frame any law that seeks to interfere or regulate the functioning of the apex court or the powers exercised by it or its judges including CJP, under the Constitution.
Justice Isa refuses guard of honour
Separately, Justice Isa refused to receive a guard of honour upon arriving at the SC for his first day as the new chief justice. He was given a warm welcome by the SC staff and was presented with a bouquet of flowers from the registrar.
“Thank you all so much. We need a lot of cooperation from you all,” he told the staff, adding that he would hold detailed meetings with them later as he had meetings and the full court hearing scheduled for today.
CJP Isa observed that people did not approach the top court when they were “happy”, adding that the people wanted an end to the issues that plagued them.
He urged the court staff to treat visitors like “guests”, calling on them to keep the doors of the top court open and accessible for all.
“Help those coming [to the SC],” he said.