ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa on Monday vowed to ensure accountability and transparency, saying he did not want absolute powers that make him unaccountable.
A full court comprising all 15 judges of the apex court, headed by Chief Justice Qazi Faez Isa, heard identical petitions, challenging the Supreme Court (Practice and Procedure) Act 2023.
For the first time in judicial history of the country, the full court proceeding was telecasted live from Courtroom No. 1 on the state television, which was also aired by all private TV channels.
Other members of the full court were 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.
During the hearing, CJP Qazi Faez Isa expressed his resolve to ensure accountability and transparency, saying he did not want such powers that make him unaccountable.
The petitioners want to make the office of chief justice unaccountable, but I don’t need such powers,” the CJP remarked and questioned as to whether the court that runs on the taxes of public would function on his will.
“Although, I dislike some laws, yet that does not mean that they are wrong,” the chief justice remarked, adding that whether Parliament carries out good or bad legislation, the sanctity of the legislature must be ensured.
The CJP observed that the power of suo moto jurisdiction devolved to a three-member committee under the Supreme Court (Practice and Procedure) Act 2023 was not an attempt to curtail powers of the chief justice.
“Had a big attack was made on the independence of judiciary, we would have taken suo moto notice of it,” the chief justice remarked.
The court, after hearing counsel for some of the petitioners and the attorney general for Pakistan, adjourned further proceedings until October 3 and directed the counsel for the parties to submit by Sept 25 their written arguments and answers, put by the full court during the course of proceedings.
However, before concluding the proceedings on Monday, the 15-member full-court bench of the Supreme Court, through a short order, lifted the stay order over implementation of the SC (Practice and Procedure) Act 2023. The chief justice of Pakistan [Qazi Faez Isa] will now form benches after consultation with two senior judges, under the Act, the order said. He 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 previous coalition government had enacted Supreme Court (Practice and Procedure) Act 2023 aimed at curtailing the powers of suo moto jurisdiction of chief justice of Pakistan as well as constitution of benches through a three-member committee, headed by the CJP along with two senior most judges of the apex court.
Advocate Muhammad Shafay Munir, Raja Aamir Khan, Chaudhry Ghulam Hussain, however, had challenged the constitutionality of the legislation, being the Supreme Court (Practice and Procedure) Bill, 2023 (“Bill”). The Bill was on its way to becoming an Act of Parliament in terms of clause (3) of Article 75 of the Constitution.
Imtiaz Rashid Siddiqui, counsel for one of the petitioner Raja Amir Khan, had prayed for interim relief by way of either the suspension of the Bill, or a direction to the President not to assent to it and/or an order to the law ministry not to notify the Act”
Before, the impugned Act became a law, an eight-member bench of the apex court, headed by former chief justice Umer Ata Bandial, on April 13, stayed its operation with the ruling that there was a substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision.
As Justice Qazi Faez Isa, senior mots judge of the apex court, took oath on Sunday as the 29th chief justice of Pakistan after retirement of Justice Umer Ata Bandial, he constituted a full court to hear the instant petitions.
On Monday, Attorney General Mansoor Usman Awan pleaded with the court to dismiss the instant petitions, challenging the law for being non-maintainable.
Khawaja Tariq Rahim, counsel for one of the petitioners, argued that the parliament, while enacting the law, had interfered in the functions of the Supreme Court, adding that the SC had its own rules framed for adjudication of cases. “Tomorrow, the parliament may order that a specific bench hear a particular case,” he argued.
Rahim, however, supported the full court hearing the instant matter at which Justice Ayesha asked the counsel that the Act had provided right to appeal in cases heard under Article 184(3) of the Constitution.
If the full court upheld the law, then who will hear the appeal and where Section 5 of the Act will go?
The CJP, however, asked the counsel to restrict himself to the case (law) under challenge. “Focus on your case,” the CJP asked the counsel.
Justice Munib Akhtar observed that under the Supreme Court Rules, the court could itself regulate the practice of the courts.
“Can parliament encroach upon something that would affect the independence of judiciary,” Justice Munib Akhtar questioned.
The judge further asked whether parliament could clip judicial powers under Article 184(3) by requiring a committee to be formed of three senior judges to decide constitution of benches.
Justice Munib Akhtar further observed that Article 184(3) of the Constitution pertains to the apex court’s original jurisdiction and allows it to assume jurisdiction in matters concerning “public importance” with regard to enforcement of “fundamental rights” of citizens.
Justice Athar Minallah pointed out to the counsel that these powers earlier resided solely with the CJP and, after passage of the law, an argument was raised that the outcome of cases could be influenced by constituting benches, which erodes the independence of judiciary. Justice Minallah said the parliament had diluted the chief justice’s discretionary powers. “That is all parliament has done. It picked three judges. 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.
The judge further observed that there are two aspects of this law: one, the CJ had full powers that were regulated and, secondly two judges along with the chief justice were empowered to regulate the practice of the Supreme Court and nobody came from outside the apex court.
Earlier, there was no right to appeal available but under the law, this was granted,” Justice Athar Minallah remarked and asked the counsel as to what fundamental right of the petitioner had been affected.
Justice Mansoor Ali Shah observed that the law had enhanced the independence of judiciary. “When parliament, which is the public forum, do anything, it’s wrong, but when 17 judges constitute benches on their own will, its right,” Justice Mansoor Ali Shah added.
The judge said that the law secures the internal independence of judiciary by constitution of benches by a three-member committee, adding that in foreign countries, benches are constituted by ballot, and not by the chief justice.
At one point, Chief Justice Qazi Faez Isa observed that he would abide by the law and Constitution and not judgments of the apex court.
Justice Ijazul Ahsen questioned as to whether constitutional amendment was not required for this piece of legislation.
Citing previous judgment of the apex court, Justice Ahsen observed that it was held that a procedure to be followed by the chief justice to invoke SC’s powers under Article 184(3) of the Constitution.
He further said that as per judgment, a bench after reaching the conclusion that there is a matter of public importance, may recommend to the CJP to constitute a bench.
In Section 2 of the Act, the power to constitute the bench was mentioned, Justice Ahsen said adding that it appears that Section 3 of the Act in question seems to go beyond this, as it actually confers on three-member committee, exercising administrative powers, to actually block the exercise of judicial powers.
Justice Musarrat Hilali asked the counsel as to whether the Act can abandon the powers of chief justice. During the course of hearing, the CJP asked the counsel as to whether he did not want to make the chief justice accountable to anyone but to strengthen him.
“Before this law, we are answerable to Allah,” the chief justice remarked, adding that a judge takes his oath to abide by the Constitution and the law.
The chief justice, while citing the case of Reko Diq, observed that $6.5 billion were lost due to a court decision in that matter; therefore, he said that as the chief justice, he did not want such authority.
“A big loss of $6.5 billion was inflicted on the national exchequer in the case of Reko Diq due to court’s decision,” the CJP remarked.
The top judge admitted that they made mistakes in the past. “A mistake was made in the Zulfikar Ali Bhutto 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 why we 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 to 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.”
“I have taken the oath not to obey the judgments but to uphold the law and Constitution,” the CJP added.
Arguing before the court, Imtiaz Rashid Siddiqui, counsel for the petitioner Raja Amir, contended that the entire law the entire Act was ultra vires the Constitution, adding that that domain was not available to the parliament.
He submitted that although the idea behind enacting the law was good, it should not be passed through simple legislation and constitutional amendment was required to pass the law.
To a question, he submitted that under the trichotomy of powers, the parliament, the executive and the top court were to make their own rules, which stand on a “higher pedestal than ordinary law” and are based according to the Constitution.
He contended that the impugned law violated Articles 9, 10 and 10-A of the Constitution, adding that the Constitution had given special significance to fundamental rights.
Citing the past judgment, delivered by the apex court, Siddiqui contended that if a matter affected a large community of people then it was a question of public importance.
Arguing before the court, Attorney General Mansoor Usman Awan pleaded with the court to dismiss the instant petitions, challenge the law for being not maintainable.
The AGP claimed that the impugned law dealt with the powers of one office, not the entire judiciary. He contended that it would bring “democratic transparency” to the institution. Furthermore, he submitted that the law was not aimed to curtail the power of the institution as a whole.
Justice Sardar Tariq Masood asked the AGP if the court upheld the law, then what will happen to the decisions, earlier made.
The AGP replied that it is the court to determine in this regard. Meanwhile Chief Justice Qazi Faez Isa said that it was not possible to conclude the case by today.
The CJP directed all the parties concerned to submit their written arguments as well as the answers to the queries put by the members of the bench by Sept 25 and adjourned further hearing until October 3.
Earlier, the Chief Justice Qazi Faez Isa refused to receive guard of honour upon his arrival at the Supreme Court.
The CJP was given warm welcome by the apex court staff and presented a bouquet from the registrar. The chief justice thanked the staff urging them to respect the people coming to the court for litigation, adding that the visitors should be treated like a guest.
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