SC full court to resume hearing petitions challenging law clipping CJP's powers tomorrow

A 15-judge full court bench led by Chief Justice of Pakistan Qazi Faez Isa will resume hearing the petitions at 90:30am

By Abdul Qayyum Siddiqui
October 02, 2023
View of the Supreme Court building. —APP/File

A 15-judge full court bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa will resume hearing petitions challenging the Supreme Court (Practice and Procedure) Act tomorrow (Tuesday).

The state television is all set to live broadcast the hearing of the closely followed case as PTV has installed its cameras inside Court­room No.1. The hearing will begin at 9:30am.


The full court bench is headed by CJP Isa and includes 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.

At the last hearing, the apex court's full court had sought replies from all parties by September 25. However, the federal government submitted its written submission on September 28 as Attorney General for Pakistan (AGP) Mansoor Usman Awan was out of the country in connection with a case.

‘Law ensures freedom of judiciary’

In its written reply to the apex court, the Centre stated that the judiciary’s freedom was ensured by the SC (Practice and Procedure) Act 2023.

In response to the question if the impugned law is sustained, what will be the fate of the cases heard by benches constituted by the chief justice after the enactment of the impugned Act? the Centre stated: “For the purposes of addressing the query it is important to draw a distinction between benches which were constituted and have rendered judgments and those benches which are still hearing petitions and have not rendered final judgments. In the event the impugned act is sustained, the former stands to be saved under past and closed transactions and the latter will merit for the benches to be reconstituted under Sections 2 and 3 of the impugned act and the proceedings in such cases be held afresh.”

It further said that the right of appeal has been accorded under Section 5 of the Impugned Act against judgments arising out of the exercise of jurisdiction under Article 184(3) of the Constitution.

“The original jurisdiction of this Court under Article 184(3) is sui generis in nature, and cannot in the traditional sense be bifurcated into criminal or civil,” it added.

‘Enlargement of jurisdiction’

To another query, the government said: “We believe that there could not be any other view except that the Constitution favours enlargement of the jurisdiction of the Supreme Court and conferment of supplemental powers.”

Under the scheme of the Constitution, the top court is empowered to deal with the matters falling within various types of the jurisdiction conferred upon it, i.e., original, appellate, advisory and review, read the statement.

“Parliament has also enlarged the territorial jurisdiction of the SC and included within its jurisdiction the territories of Provincially Administered Tribal Areas of Chitral, Dir, Kalam, Swat and Malakand Protected Area, through the Supreme Court and High Court (Extension of Jurisdiction A certain Tribal areas) Act, 1973.”

PML-N seeks dismissal of pleas challenging SC Act

In its concise statement, Pakistan Muslim League–Nawaz (PML-N) pleaded with the top court to dismiss the petitions challenging the law clipping CJP's powers.

On behalf of the PML-N, its counsel Salahuddin Ahmed submitted a written reply to the top court regarding to the matter.

“The PML-N contends the SC Act 2023 is intra vires the Constitution and is good law. As such, all the instant petitions challenging the same may be dismissed and the interim order passed by this court on April 4, 2023, may be vacated,” read the statement.

It further said that the interim order passed by the Supreme Court to the effect that "the Act that comes into being shall not have, take or b given effect nor be acted upon in any manner" is unprecedented and contrary to the jurisprudence of the apex court.

'SC Act not an attack on CJP rights'

At the previous hearing, CJP Isa observed that parliament’s SC (Practice and Procedure) Act 2023 was not an attempt to clip the top judge’s rights by devolving the suo motu powers to a three-member committee.

The hearing was seen as historic because, for the first time in the country's judicial history, the Supreme Court allowed live telecast of proceedings on the petitions challenging the contentious law seeking to regulate suo motu powers of the country's top judge.

'Do not want absolute powers'

During the hearing, the CJP remarked: "This court runs on the taxes of the people."

If this law is struck down, the chief justice will benefit, the CJP said. However, he added: "A judge takes an oath to abide by the Constitution and the law."

He further observed that as the top judge of the country, he did not want absolute authority. "$6.5 billion were lost due to the court's decision in the Reko Diq case, As chief justice, I do not want such authority," the CJP remarked.

"I have not sworn to obey the judgments of the Supreme Court. I have taken oath to uphold the law and the Constitution," he said.

‘Law not against SC’

After a brief hiatus, AGP Mansoor Awan appeared before the court and argued that the petitions were inadmissible.

He said that the law dealt with the powers of one office, not the entire judiciary, and aimed to bring “democratic transparency” to the institution.

He further contended that the law, au contraire to the claims of the petitioners, actually served in the public interest.

The AGP further argued that since no external check or institution was involved or imposed by the Act, it did not, in fact, curtail the power of the institution as a whole.

‘Mistake made in Zulfikar Ali Bhutto case’

During the course of proceedings, CJP Isa observed that there was also a public opinion that Article 184/3 was misused. The three-member bench nullified the Reko Diq agreement causing a loss of $6.5 billion to the country.

It was the opinion of the judges and it was not corrected, he added. The top judge admitted that they made mistakes. “Mistake was made in the Zulfikar Ali Bhutto’s case.”

“We have a huge ego. We endorsed martial law,” the CJP remarked, adding that the judges should admit that they also made omissions.

CJP Isa continued, “We take suo motu notices over every matter then whey can’t on legislation about ourselves.”

In Bhutto’s case, the review petition was also heard by the same judges who handed him the death penalty, the top judge stated. “Our ego should not be so huge that we do not admit our mistake.”

At this, Justice Minallah asked if the masses filed petitions after the endorsement of martial law and said, “We should also be held accountable.”

Case background

On April 13, an eight-member bench of the Supreme Court stayed the implementation of the law, which deals with the powers of the top judge in matters of public interest and seeks to limit the suo moto powers of the Chief Justice of Pakistan.

During the previous hearing in June, the similarities between the Supreme Court (Review of Judgments and Orders) Act 2023 — which relates to the right of appeal in suo motu cases — and the SC Practice and Procedure Act were discussed with Attorney General for Pakistan (AGP) Mansoor Usman Awan saying that parliament could look into "harmonising" the two laws.

The then-CJP — while he welcomed the proposal — said that the federal government should take the top court into consideration when making any legislation related to the judiciary.

The law

The law gave the power of taking sou motu notice to a three-member committee comprising senior judges including the chief justice. It further aimed to have transparent proceedings in the apex court and includes the right to appeal.

Regarding the constitution of benches, the Act stated that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges.

It added that the decisions of the committee would be taken by a majority.

Regarding exercising the apex court's original jurisdiction, the Act said that any matter invoking the use of Article 184(3) would first be placed before the committee.

On matters where the interpretation of the Constitution is required, the Act said the committee would compose a bench comprising no less than five apex court judges.

About appeals for any verdict by an apex court bench that exercised Article 184(3)‘s jurisdiction, the Act said that the appeal would lie within 30 days of the bench’s order to a larger SC bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

It added that this right of appeal would also extend retrospectively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the SC (Practice and Procedure), Act 2023, on the condition that the appeal was filed within 30 days of the Act's commencement.

The Act additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, it states that an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing.