Chief Justice of Pakistan Justice Qazi Faez Isa on Tuesday questioned how the Supreme Court (Practice and Procedure) Act 2023 could diminish the powers of the apex court.
He made the remarks as a full court resumed hearing pleas against the law which requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court. Like last time, the hearing was streamed live on television.
- CJP Isa says court wants to try and conclude case today
- Lawyer Ikram Chaudhry argues an effort has been made to enter into an area not in Parliament’s domain
- “Is Parliament not competent to legislate in relation to access to justice?” asks Justice Minallah
- “You can raise a finger on the Parliament but you are quiet on the omnipotency of the chief justice,” remarks CJP
Headed by CJP Isa, the bench consisted of Justice Sardar Tariq Masood, Justice Ijazul 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.
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.
During the hearing today, the court heard arguments by parties opposing the law, including the PTI, and then adjourned the hearing till Monday (Oct 9).
“That shall be the last day of the hearing,” Justice Isa said. He also told the lawyers that only one case would be fixed for hearing on Oct 9 and asked the counsels to be prepared if the proceedings continued till late at night.
Replies submitted to court
On the very first day of assuming charge as the chief justice, CJP Isa had ordered the hearing to be live-streamed and had 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. Subsequently, the full court had asked the parties concerned to submit written replies before the next hearing.
Last week, the Pakistan Muslim League-Q (PML-Q) had pleaded before the apex court that the Act was aimed at promoting the independence of judiciary, the rule of law, and the right to access to justice and fair trial.
The party, represented by its counsel Zahid F. Ebrahim, said SC rules provided that the legislature could determine the practice and procedure of the court in relation to the constitution of benches, in particular. Parliament has the right to enact the subject legislation and has done so strictly in accordance with the law and the Constitution, the response said.
Meanwhile, the government had argued that if the Supreme Court (Practice and Procedure) Act 2023 was sustained, verdicts handed down by benches constituted before enactment of the law would be saved as past and closed transactions.
But if the benches are still hearing the cases, then such benches should be reconstituted by a committee of three most senior judges, said a reply filed by Additional Attorney General Chaudhry Aamir Rehman on behalf of the federal government.
Referring to a question put by the full court on Sept 18 that could a right of appeal against judgements arising out of Article 184 (3) be created through ordinary legislation, as opposed to a constitutional amendment, the government contended that the original jurisdiction of the apex court under the provision was sui generis in nature and it cannot be bifurcated into criminal and civil aspects.
Those aggrieved by judgements under Article 184 (3) may go for a review on the same grounds as are available for review of judgements rendered under Article 185, the reply said.
On the question of whether the regulation of practice and procedure by Parliament undermines the judiciary’s internal independence, the government stated that no restraint could be placed on the institution’s performance and operation. Independence of judiciary implies independence of judges, institutionally as well as individually, from the executive, the government further stated.
Independence of judiciary
At the outset of today’s hearing, CJP Isa said that the law affected the chief justice and the two senior most judges of the apex court. “On one hand, the CJP’s powers, if not being limited, are being reduced. On the other, the same powers are being distributed among senior judges,” he said.
Justice Isa said that the law would also apply to future chief justices and senior judges of the apex court. He said that he had felt that he should not be a part of the bench hearing the pleas but because it affected all judges, it was deemed fit that a full court preside over the case.
Addressing the lawyers gathered, he urged them to talk about points that were relevant to the case. “We want to try to conclude [the case] today,” he said as he highlighted the backlog of cases in the SC. He said that if the lawyers wished to make additional arguments, they could submit a detailed response to the court.
Starting his arguments, lawyer Ikram Chaudhry, representing petitioner Niazullah Khan Niazi, read out the opening paragraph of the Act. He argued that the paragraph indicated that the law was being enacted for a “certain or a specific purpose”.
However, CJP Isa interjected and asked whether the law stated this or the lawyer was implying this. “Let’s not put words in a statute which don’t exist. If that is your impression, then say so,” he remarked.
The lawyer then went on to Section 3 of the Act, which states that a committee of judges would constitute a bench to hear matters of public importance. He said that the clause was an “encroachment on the area which falls within the legal framework”.
Regarding the provision of appeal under the Act, the lawyer said that “additions” to Article 183 of the Constitution — which empowers the SC to entertain public interest litigation in its original jurisdiction — could only be made with a two-thirds majority in Parliament. He further said that Section 8 of the Act had “bulldozed the concept of the independence of the judiciary”.
“So an effort has been made to enter into an area which is not within Parliament’s domain,” Chaudhry said. “In a parliamentary system, parliament and the executive are one, the same phenomenon in the Constitution. They have a nexus amongst themselves,” he said.
He further said that the law was passed by a “truncated” Parliament, which did not have the authority to make constitutional amendments.
At one point, the lawyer argued that the enactment of the Act “totally denies the Constitution itself”. “When there is a wide law, [which is] fundamentally unconstitutional, it would be within the SC’s authority to look into it and declare it ultra vires,” he said.
At one point, CJP Isa asked, “When you talk about the independence of the judiciary, is it a unique thing or is it for the people and their rights? Is independence of the judiciary a standalone concept which should be defended under all circumstances?”
‘Can Parliament regulate SC?’
During the hearing, Justice Akhtar said that the question at hand was of legislative competence. “Not perhaps how ‘good’ or ‘bad’ this law is. The question that is perhaps agitating the petitioners […] is that is there legislative competence? If the answer is [yes], then the matter proceeds in one direction. But if the answer is that there is no legislative competence, then that ends the matter.”
Justice Akhtar said that the technical term used in constitutional law, for when the legislature tries to make a law beyond its competence, was a “fraud on the constitution”. “Those are very strong words,” he said as he again highlighted the question of legislative competence.
He referred to Section 7 of the Act, which states that an application pleading interim relief shall be fixed for hearing within 14 days from the date of its filing. “Now some may say this is a ‘good thing’. The question is can Parliament regulate SC down to this nitty gritty level? Is this what independence of judiciary and separation of powers is all about?”
At one point, however, CJP Isa highlighted the amount of time the lawyer was taking to present his arguments. “This case will not go on after today,” he said as he told the lawyer that he would have to spend the same amount of time listening to the other petitioners in the case.
During the hearing, Chaudhry said that Article 239 barred the government from making constitutional amendments without having a two-thirds majority.
Justice Ahsan then went on to say that Parliament was not competent to make the Act as it “essentially requires a constitutional amendment which is a totally different species of laws and which requires a totally different procedure which Parliament needs to adopt . And since that procedure has not been adopted it can be argued that Parliament was not competent to make this law which has the effect of amending the Constitution.”
“Yes, my lord. That’s my submission,” Chaudhry said.
Justice Minallah said that in his opinion, all the law did was to secure and ensure access to justice. “Is Parliament not competent to legislate in relation to access to justice? Providing an appeal is access to justice. Even regulating the chief justice’s powers is also an element of access to justice.”
Chaudhry said that the legislation in question affected the independence of the judiciary and also completely regulated the internal workings of the court. He said that the Parliament had acted beyond its mandate as he concluded his arguments.
Lawyer Hassan Irfan, representing petitioner Mudassar Hassan Jura, then took the rostrum. He started off by saying that the question at hand was of legislative competence. He said that the judiciary was one of the three pillars of the state.
Referring to Article 50, he said that it highlighted that it concerned the Majlis-i-Shoora. He said that the bill was sent to the president for his assent, who then raised an objection. The lawyer said that this indicated a “dispute” within Parliament over the passage of the bill.
Talking about Article 184(3), he argued that the law was replacing the SC’s function and transferring it to the committee, which “may not even be considered as a judicial function and would be an administrative function”.
“Are you contending that individually, chief justices cannot invoke this power and this power vests exclusively in the SC, which means the chief justice and all the judges of the SC?” CJP Isa asked.
Irfan said that the powers were given to the apex court which then drafted the SC rules. “The SC then delegated their own power as a whole to the chief justice,” he said.
Here, Justice Ahsan noted that Article 191 had empowered the SC to make rules that were administrative in nature, adding that the formation of benches and fixation of cases was an administrative power.
“So what the law does is, it removes the power from the chief justice and assigns it to two more judges, a committee of three judges,” he noted. Justice Ahsan said that in exercise of administrative powers the court could delegate its powers.
“That power has been exercised under Article 191 which is a constitutional mandate. So where a constitutional mandate empowers the SC to make rules, those rules have a certain sanctity attached to them,” Justice Ahsan said.
Article 191 reads: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.
The court then took a break in proceedings. When they resumed, Irfan continued his arguments and urged the court to review the “true purpose” of Article 184(3). He contended that the article did not state that a constitutional right had to be violated for an appeal to be filed. He then proceeded to read out the article out loud.
When asked which fundamental right the petitioner seeking was seeking to enforce, the lawyer responded that it was the right of access to justice.
Here, Justice Mazhar pointed out that the lawyer was referring to the part about public importance rather than fundamental rights. Justice Minallah then asked, “If the chief justice has exclusive rights, then access to justice is not affected?”
“It is his prerogative whether he fixes for hearing or not but he will not decide whether this petition should go for hearing or not, whereas this committee is going to decide [that],” the lawyer contended.
Here, CJP Isa asked Irfan about his interpretation of the new law. Justice Ahsan then remarked that the lawyer was “going into the nitty gritty of the law” when he first needed to answer what fundamental rights were being impacted by its passage.
He also observed that the full court hearing the case amid the petitioners’ and the government’s differing views proved that the case was a “maintainable petition”, hence, arguments on that aspect were not needed.
At one point, Justice Ayesha asked the lawyer if the absence of the right of appeal in the case of a full court barred the petitioner from access to justice. “Is this a substantive right that is being prevented?” she asked.
The lawyer replied that it did bar access to justice and said the solution was in Article 186, which would allow a full court to hear the case.
Irfan noted that the Constitution was the one thing supreme to both, the SC and the Parliament. The oaths for all offices have the words “preserve, protect and defend the Constitution” in common, he stated. The lawyer then proceeded to read out the oath for judges out loud.
When Irfan said that it was “equally incumbent upon the Parliament to follow the Constitution”, CJP Isa asked rhetorically, “Can there be two opinions on this?”
The top judge remarked that the lawyer touched upon one topic but then moved to the other without completing his arguments for the former. “I haven’t used my pen yet. I will write if I understand your arguments.”
When asked by Justice Mazhar whether Parliament had the competence to enact the law or not, Irfan answered in the negative. Upon being asked if the lawyer considered that the SC’s verdict on a matter should be final and not valid for appeal, Irfan replied that he did not think so.
Here, CJP Isa highlighted that lawyers and civil society had objected to the overuse of Article 184(3) in the past.
The lawyer then proceeded to argue that each time a new CJP would come to power, there would be no certainty of decisions and benches. At this, CJP Isa asked, “Do you want us to open the door for the next martial law?”
At one point during the hearing, CJP Isa observed that it needed to be ascertained whether the law pertained to the benefits of the people or to their loss rather than the benefits to the chief justice.
Here, Justice Akhtar noted that the apex court did not need the right to appeal in order to correct its past verdicts. He asked whether section 3 of the law was in direct conflict with Article 184(3).
Justice Shah then asked the lawyer if he thought the Parliament could legislate regarding the SC’s practice and procedures under Article 191 of the Constitution. To this, Irfan answered in the negative.
Justice Shah noted that Article 191 authorised Parliament to “go ahead with a legislation” about the practice and procedures of the SC, as well as when read with Article 58. He asked Irfan to explain how the said articles did not empower Parliament to do so, as the lawyer had contended.
“Until you don’t admit, there cannot be a correction,” CJP Isa said as he noted that prioritising the verdict of a bench could amount to a violation of the Constitution.
Multiple judges then asked the lawyer to elaborate the meaning of the words “subject to the Constitution and law” in the law empowering the SC to make rules, and whether it limited the apex court’s powers.
Here, Justice Akhtar pointed out a conflict in the Act that as per the lawyer, there could not be a repeal or an implied repeal but section 2 of the Act meant repealing of Order 8.
The judge then read out aloud Article 171 of the 1956 Constitution, which he said provided a “direct enabling grant” and had different language from today’s Constitution.
The lawyer argued that the committee was “preventing access to the Supreme Court directly and preventing the Supreme Court from making an order”.
Justice Akhtar then stated that the Parliament’s jurisdiction to legislate on SC matters, if it existed, came into being under the 1973 Constitution, noting that there was a “continuity perhaps” as the SC rules had already existed before but were just amended in 1980.
At this point during the hearing, Justice Minallah asked Irfan to cite any examples, if there were, from “any jurisdiction around the globe that give precedence to rules made by an unelected court over a primary legislation made by a competent forum”.
To this, the lawyer responded that the rules enacted would have to be within the Constitution.
Here, Justice Mandokhail asked the counsel whether the Constitution had placed any bar on the Parliament to make a law that was inconsistent with the SC rules. Irfan replied: “If there is no bar, there is no permission either.”
CJP Isa then remarked that the lawyer was simply answering in “yes or no” rather than presenting arguments for his stances. He proceeded to observe that the Act was not only regulating the Supreme Court’s practice and procedures as indicated in its name but also “creating a substantive right of appeal”.
Here, Justice Ahsan asked the lawyer if providing the right to a fresh appeal meant “conferring the jurisdiction or enlarging” it. To this, Irfan replied that it was conferring the jurisdiction.
The top judge then remarked that the counsel was not providing proper answers to the questions, reminding him that he had taken too much time.
‘Omnipotency of CJP’
Lawyer Uzair Karamat Bhandari, representing the PTI, then began his arguments. He told the court that he had instructions to support the petitioners but “with some caveats”.
“I am not saying that Parliament, per se, cannot make any law as far as the practice and procedure of the SC is concerned. It can but that power is heavily circumscribed by various express and structural limitations within the Constitution,” he said.
Bhandari said that Parliament drew its legislative powers from Article 142 and a set of provisions in the body of the Constitution. He said that the question that arose whether Article 191 by itself was a source of legislative power.
“My submission on that is that it is not,” he said. The lawyer contended that the preamble of the law identified the source of legislative power which Parliament had invoked, namely Article 175(2) and Article 191.
Article 175(2) provides that no court will have any jurisdiction unless conferred on it by the Constitution or by under any law.
Bhandari then referred to Article 142. “So the legislative power is conferred with respect to identified subjects and the appropriate legislature is identified,” he contended.
“So you are saying Parliament does not have the power to legislate except items mentioned in the federal legislative list? Is this what you are saying,” CJP Isa asked.
“Yes,” the lawyer responded, adding that this also included what was mentioned in the body of the Constitution.
Giving an example, CJP Isa then said that under this argument Parliament could not legislate with regards to artificial intelligence, outer space and social media as they were not mentioned in the FLL or the Constitution. He urged the lawyer not to “paint broad strokes”.
During the hearing, Bhandari said that the rule-making power was a standalone and independent power of the SC. He said that Parliament could legislate in this regard but there were “limits” to this.
He contended that when it stated “subject to the law” in Article 191, in order to know what law could be made in this context, one would have to examine other provisions of the Constitution.
The lawyer said that under Entry 55, which outlined the scope of the jurisdiction and powers of the SC, there could only be an “enlargement of jurisdiction” when there was an express authorisation by or under the Constitution.
At one point, CJP Isa interjected and said, “I am trying to wrap my head around the fact that you keep saying its taking away the power. The first power was conferred by Parliament through the Constitution.
“That power is being enlarged. If this power was given to, for example the Senate of Pakistan […] then maybe yes, you are absolutely correct. But this power has not gone out of this building. It remains within the building […] so you’re saying that more minds will actually be destructive of the 184 inherent power?” he asked.
Justice Isa said that while the chief justice’s powers were being reduced, the powers of the apex court were increasing. “How are you saying they are being reduced,” he asked the lawyer.
The CJP said that if the courts were making laws, then it was “wrong”. “Their power is to interpret law. If a law violates some constitutional provisions, strike it down,” he said, adding that he didn’t feel as though the court’s powers had been taken away.
When the hearing resumed after a short break, Justice Minallah asked the lawyer that if Parliament enacted a law regarding data protection which was in conflict with the rules made by the SC under Article 191, would the rules prevail or the act?
“In that scenario, the rules will prevail because in order to make a law on data protection, which also provides for the practice and procedure of the SC, it (Parliament) also has to go through Entry 55. So the conditions of Entry 55 will have to be met which may not be possible in this case because there is nothing in the body of the Constitution […] which allows Parliament to make this law and authorises it to enlarge the jurisdiction,” Bhandari said.
He said that when there was an express statutory power by virtue of “an express matter in the Constitution”, then it was possible for Parliament to provide rules for practice and procedure but not otherwise.
The lawyer said that case law was clear the rules would prevail. He said that ex-premier Yousuf Raza Gillani was tried and convicted for contempt. “The trial was conducted by this honourable court,” he said.
“Here, it seems, that the procedure that their lordships [followed], was that laid down in the Contempt of Court Ordinance and not that laid down in the SC rules,” he said.
He argued that when Parliament enacted a law on a subject on which the Constitution expressly authorised it to enlarge the jurisdiction of the SC, then it could also prescribe rules for the court’s practice and procedure for that subject only.
He contended that the power to “regulate the exercise of the power of contempt” would include the power to frame a law which allowed for trial and creation of an appellate forum.
“This is exactly what has been done in the Practice and Procedure Act as well,” CJP Isa remarked.
However, the lawyer disagreed and said that there was nothing in Article 184(3) which stated that the power conferred under it could be regulated by law. He said that the power to regulate included the power to grant substantive right of appeal.
Justice Ahsan remarked that when there was a specific power conferred by the Constitution to frame a law, then that law could be framed and in that law an appeal could be provided. He noted that the Constitution may not specifically say that such law may provide for an appeal.
“It is inherent in it. Where the Constitution confers the power to frame a law on that particular subject, it gives you ancillary powers, which include the power to provide an appeal,” he observed.
However, in terms of Article 191, there is no power, he said. Justice Ahsan said that the power to frame rules was only conferred on the SC. He said that Entry 55, even if it was used standalone, “does not meet the muster”.
CJP said that if Parliament had been given the right to grant an appeal for Article 6 (high treason) and contempt, then the question that arose was that was giving an appeal wrong?
“If an appeal is given, what is wrong with that?” he asked. Justice Isa noted that the lawyer was appearing on behalf of a political party. He said that the arguments the lawyer made could also have been made in the adjoining building, a reference to Parliament House.
In response, Bhandari said that the decision to resign from the assemblies was a political decision.
At one point during the hearing, Justice Ayesha asked: “When we read the word law, how do we see which authority is competent whether it is the federation or province?”
Meanwhile, Bhandari mentioned previous instances where provinces had sent appeals to the SC without there being an act of Parliament.
“Bhandari sahab, isn’t it distinguishable because here the appeal is being provided against a judgement passed by the highest court while exercising its original jurisdiction … there is no other court above it. So it is actually securing the right of access to justice,” Justice Minallah highlighted.
However, the PTI lawyer argued that the question was of competence. “The province was not competent to legislate just as the Parliament is not competent, in its capacity, to provide an appeal for Article 184(3),” he said.
As Bhandari cited Article 175(1) to support his argument, the CJP asked if he was suggesting that the chief justice was omnipotent. Justice Isa gave what he called an “absurd example” of revoking Bhandari’s license and barring him from appearing court “in a fit of rage”.
“What can you do? Nothing … surely we are also human beings … I remain vulnerable and that’s what your mighty teaches us that you will make mistakes,” the top judge said.
He further stated that the lawyers themselves had pointed out that Article 184 was often used incorrectly and the Parliament saw this. “Therefore they gave a right of appeal.”
“You can raise a finger on the Parliament but you are quiet on the omnipotency of the chief justice,” Justice Isa said.
Meanwhile, Justice Ahsan remarked here that there could be instances where some SC judgements could be wrong. “But the policy of law is that there has to be a finality attached, if you keep giving appeals then it is an endless exercise which would deplete the entire purpose of the judicial system,” he said.
Here, the CJP said he both agreed and disagreed with Justice Ahsan to an extent. He highlighted that the concept of finality didn’t exist in the world without appeal.
Bhandari, for his part, said US SC had original jurisdiction. However, Justice Isa noted that there was difference that all the judges heard cases in the US. He also expressed frustration over repeated comparisons with the US.
During the hearing, Justice Isa said that the real question was whether Parliament could give a right to appeal or not.
Justice Ayesha also asked here: “If right of appeal is substantive, then how can a committee of three judges control that right?”
Bhandari replied that it highlighted the problem with the provision, adding that the administrative power was used to stultify the exercise of judicial power. “If the right of appeal has to be provided in every case … that means nine benches will always have been available to hear an appeal … the largest bench that can therefore be formed would be an eight-member bench.”
However, the CJP said Bhandari’s argument was “fundamentally flawed”. He also asked Bhandari what difference did it make “to a political party” and what gains or losses were they getting from it.
“It is not about benefit or loss, the only concern is … my client could be in power again, the history of our country teaches us this, so even then, I am under instructions to state that a parliament should never be allowed to do this,” the PTI lawyer said. However, he was cut short by the CJP who interjected that in cases such the one being currently heard, lawyers were supposed to assist the court.
“This is not your party’s right to give instructions,” Justice Isa said, adding that Bhandari was first and foremost an officer of the court.
For his part, the PTI lawyer recalled that physical attacks took place in this court and therefore “a firewall was formed to protect the judiciary”.
“We want to protect the Parliament as well,” the CJP said.
Separately, Justice Ahsan said: “Under the constitutional scale, each organ of the state has been provided the bar to make its own rules. The judiciary doesn’t make the rules of the Parliament or the executives. The judiciary makes its own rules.
“Only those rules made by the executive or other organs that are in conflict with the Constitution can be looked at by us and if we find that they are in conflict they are being struck down. So those three firewalls have been intentionally created by the Constitution and the interest of every citizen of the state is that they remain intact.”
He went on to ask how could a procedural law provide an appeal. “It can’t,” replied Bhandari.
Justice Akhtar also asked if it could be said that the rule-making power of the court and that of the Parliament extended over the same area under the subject matter.
“If it is used as an enabling provision, then yes,” Bhandari said. “If this is so, then how can the Parliament can use Article 191 to bring a substantive right to appeal?” Justice Akhtar questioned.
At one point during the hearing, Justice Isa highlighted that if, supposedly, he as the CJP became unreasonable and said no to calling a full court, “then nobody can do anything about it”.
“How will you resolve this? The Parliament has said that the CJP may not like it but we have made an intent to resolve it. Because your conduct has shown you are never going to do it,” he said and also asked if Islam permitted such a powerful body.
Justice Hilali also pointed out that “constitutional amendment was formed unconstitutionally”.
Meanwhile, Justice Minallah highlighted that Bhandari was representing a political party and could be in power in the future but did not repose trust in the Parliament.
“So, do you think it is a matter should have been in the first place taken up under Article 184(3) because everyone and kindly if you could come up with any example in any jurisdiction where a good law, that ensures justice, has been struck down by any court?” he asked.
Bhandari said the Indian SC did that in the advocate of record case in 2016, highlighted that a constitutional amendment was struck down because it violated the independence of judiciary.
However, Justice Minallah pointed out that the law under discussion was advancing the judicial independence.
Justice Isa, at one point, also asked Bhandari if his political party could commit to repealing the law if and when it came to power but the lawyer refused to do so.
Justice Minallah again asked Bhandari if the PTI supported the powers vested in the CJP and not three judges to which the lawyer said that he did not support that. “So it is a good law,” the judge said.
Bhandari contended that he didn’t believe the law was good and if the PTI came to power, it would advice it to come up with a better law.
Before concluding Bhandari concluded his arguments, Justice Isa stressed that the Holy Quran and Islam laid importance on discussion to dispense justice in the truest spirit.