• Justice Isa to consult top judges on formation of benches, as envisioned in impugned SC Practice & Procedure Act
• AGP says cases decided since law’s enactment should be considered ‘past and closed transactions’
• Lawyers bombarded with questions from full bench as they fail to satisfy court
• New CJP refuses guard of honour, comes to work without protocol
ISLAMABAD: In his maiden appearance as the chief justice, Justice Qazi Faez Isa did two things on Monday: he ordered live-streaming of the entire hearing by the full court bench consisting of all 15 judges inside the Courtroom No. 1; and implicitly vacated the April 13 suspension of the enforcement of the Supreme Court (Practice & Procedure) Act, 2023.
Though the court order did not explicitly say that the stay on the implementation of the law regulating the powers of the top judge had been vacated, Justice Isa stated he would consult with two senior-most judges Sardar Tariq Masood and Ijazul Ahsan regarding the formation of benches — a key clause in the law.
The hearing has been adjourned till Oct 3. After the hearing, lawyers were in agreement that in practical terms, the court had vacated the stay granted earlier by an eight-judge bench.
“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,” a short order by the CJP said, adding that senior puisne judges Justice Sardar Tariq Masood and Justice Ijazul Ahsan agreed with him. In the late evening, the CJP also constituted benches for today.
“We will be fixing routine cases that concern lawyers mostly from Islamabad,” observed the CJP as he disposed of a plea raised by the Pakistan Bar Council (PBC) seeking the constitution of the full court to hear a set of nine challenges to the Supreme Court (Practice & Procedure) Act, 2023.
The entire hearing focused on questions about what rights of the citizens have been taken away by enacting the act, and that if no enforcement of fundamental rights was involved then how these petitions could be filed by invoking Article 184(3).
Before the commencement of the nearly seven-hour-long proceedings with two breaks, a full-court meeting of judges was held in which it was decided by a majority that the proceedings should be broadcast live.
Subsequently, the Pakistan Television Corporation was assigned the task of covering the proceedings by installing six digital cameras: four in the gallery reserved for guests and one in front of the rostrum.
At the start of the hearing, the courtroom was full, but as time passed, lawyers as well as media representatives started leaving the courtroom to avail the benefit of live telecast of proceedings.
Though the live streaming benefited people watching glued to their screens, it also exposed the shortcomings of lawyers who failed to satisfy the court with their lines of argument. On the other hand, the counsel representing their clients also faced a volley of questions from all members of the bench, one after another.
That was the reason Khawaja Tariq Rahim, who was representing a number of petitioners, told the court that in all he faced 32 different queries from the bench for which he needed time to furnish proper replies.
Fate of decided cases
A heated debate on the fate of cases that were heard and decided after the enactment of the law also ensued. Justice Masood asked point-blank from Attorney General for Pakistan (AGP) Mansoor Usman Awan as to what would become of these orders if the court declared the law as valid.
The AGP asked the Supreme Court to treat the judgements and orders passed after the enactment of the Supreme Court (Practice and Procedure) Act 2023 as past and closed transactions.
“Can we give retrospective effect if the court upheld the law by saying all benches that heard the respective cases after the passage of the law were not properly constituted since the three-judge committee did not approve their composition to hear such matters,” wondered the CJP.
“If the cases stand decided, they stand decided,” AGP replied. He said the law did not undermine the independence of the judiciary or the fundamental rights of citizens.
“Such cases are from the recent past,” observed Justice Masood. Without naming anyone, the judge was seemingly alluding to the recent verdict in the NAB amendments case. However, Justice Athar Minallah came up with a solution, saying the aggrieved party could get a right of appeal if the court upheld the enactment of the law.
Cross-talk among judges
The hearing also witnessed cross-talk among the members of the bench when Justice Munib Akhtar — a member of the bench — observed that he was not indulging in conjecture or engaging in theoretical discussions but rather trying to understand if parliament makes a law by vesting entire authority in the CJP, then would it fall within the capacity of parliament or not.
The observation came when the CJP while pointing towards the AGP observed that “we should not indulge in conjectures or opinion rather focus on the law”. “Here we are sitting inside the air-conditioned rooms but people were dying in jails while the pendency at the court had swelled to 57,000 cases,” he said, adding, “We are getting salaries out of the pockets of the poor people…if you want to have a debate on the issue, go to the high courts.”
Justice Isa said instead of judges persuading the counsel, the lawyers should persuade the judges, adding that 150 cases have been added today and if you want to see the system of justice collapse then go on and discuss the issue.
He also recalled how a ‘Himalayan mistake’ was made when a three-judge bench took up the Reko Diq case under Article 184(3) and consequently Pakistan faced a whopping penalty of $6.5 billion.
“Rather than putting the interest of the country at peril, I would prefer putting my powers as the CJP at the feet of the people,” he said in a comment on criticism of the act.
“What is the harm in accepting our mistakes,” the CJP observed. The apex court validated military interventions, he said, adding that he would never accept such decisions even if a reference was filed against him. “I have taken an oath to protect the Constitution and the law and not court judgements especially which were given while validating military interventions.”
“We should think about the future of the country,” he said.
Earlier, the CJP reached the Supreme Court without any protocol and also refused to receive a guard of honour from a police contingent. He also requested court staff to cooperate with him in achieving the cherished goal of dispensing justice.
Published in Dawn, September 19th, 2023