The Supreme Court (SC) heard a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023 — which requires formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.
In a first, the hearing is being 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 Mansoor Usman Awan, the court adjourned the hearing. The court directed the parties’ lawyers to submit their written arguments by Sept 25.
Shortly after taking oath on Sunday, Chief Justice of Pakistan (CJP) Qazi Faez Isa — whose 13-month tenure ends in Oct 2024 — formed a full court to take up a set of pleas challenging the legislation, which was suspended by the SC under then-CJP Umar Ata Bandial earlier in April.
Headed by CJP Isa, the bench consists 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.
Before the hearing began, the federal government urged the top court to dismiss the pleas challenging the law.
In a detailed reply submitted by Attorney General for Pakistan (AGP) Mansoor Usman 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 reading 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.