10 Judge’s rejects pleas challenging Practice and Procedure Act,
Islamabad(Mudasser Chudry/Webdesk)- In a major development, the Supreme Court Wednesday “sustained” the Supreme Court (Practice and Procedure) Act 2023 — which deals with the chief justice’s powers — as “constitutional” with a 10-5 majority.
Supreme Court of Pakistan Wednesday rejected the petitions challenging the Supreme Court (Practice and Procedure) Act seeking to trim the powers of the chief justice of Pakistan,
In a majority 10-5 decision, Supreme Court validated the act while rejecting all the pleas challenging the Act.
Earlier, after the completion of the arguments from all the parties, Chief Justice of Pakistan (CJP) Qazi Faez Isa said if the full court reached a consensus then the decision will be announced today otherwise the decision would be reserved and would be announced later.
During the hearing, Chief Justice of Pakistan (CJP) Qazi Faez Isa remarked that the Parliament is not hostile to the Supreme Court and both the apex institutions could perform their functions simultaneously.
The CJP observed the world moves forward hand in hand.
The 15-judge full court could not complete the hearing on Tuesday as well and the proceedings were adjourned for Wednesday.
The full court consists of Chief Justice of Pakistan Justice Qazu Faez Isa, 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 proceedings on Tuesday, the CJP had restrained judges sitting on the full court from asking frequent questions from lawyers, as they presented their arguments.
At the start of every hearing, the CJP had declared that the court would wrap up the case today but it could not do so due to time constraints, partly due to lengthy arguments presented by the counsels and the frequent interruptions by the judges, putting up queries which led to the hearing being adjourned again and again.
During the proceedings on Wednesday, the CJP maintained that the Parliament and the Supreme Court should not be pitted against each other, saying that the legislature is not the enemy of the people and both institutions should “live and let live”. “Why do we see each other’s institution negatively? Why can’t it be said that one institution legislated for the betterment of another?” CJP Isa wondered.
Attorney General for Pakistan (AGP) Mansoor Usman Awan presented his submissions, saying his arguments would be based on the government’s written response filed in the court.
“You are saying you will not repeat the arguments but will highlight them,” the CJP said, to which the AGP stated that he would talk about the independence of the judiciary and Article 191 of the Constitution.
The AGP added that three questions were raised during the proceedings on the matter in discussion and he would respond to them. He said Article 191 did not take away the Parliament’s right to legislate. “Parliament has given the judiciary its independence but has also not limited its right to legislate,” Awan said.
Here, Justice Munib Akhtar recalled that before 1973, changes to SC rules were conditional to the permission of the governor general or president.
For his part, the AGP said there were no restrictions on the Parliament amending rules under Article 191. “Are you saying that there are no restrictions on the Parliament amending rules formulated by the SC?” Justice Ahsan asked. “So are there no restrictions on SC amending laws created by the Parliament?”
Awan replied that the Parliament was the institution that created laws. He further stated that if the number of pending cases in the apex court crossed 70,000 a need may arise to create another law.
Justice Naqvi, meanwhile, asked if the AGP had brought the record of the number of parliamentarians who had debated on the practice and procedure law. “It is present on the website,” Awan replied.
At one point, CJP Isa said institutions should not be “pitted against each other” and there should be mutual respect among them. “In my opinion, the Parliament respected the SC. If it wanted, the Parliament could have taken another step which it did not. I believe that step was not taken because the Parliament trusts us,” he said.
Resuming his arguments, the AGP the Constitution never acknowledged the CJP as the “master of the roster”. Here, Justice Isa interfered and asked about the genesis of the term and whether it was even used today. Awan replied that the term came from the colonial British times. The CJP again questioned if such a term existed in Islamic history and criticised the dependence on “colonial masters”.
Justice Ahsan remarked that the SC law has impacted the independence of the judiciary. “The word law is used 200 times in the Constitution, will it have the same meaning?” he said, questioning Awan.
Responding to the judge, the AGP said that laws are either made by the Parliament or by judges.
Justice Akhtar remarked that there cannot be any legislation that takes away fundamental rights as per Article 8.
The AGP, however, said that the Parliament has the power to legislate under Article 191. “Parliament cannot legislate against independence of judiciary,” he said.
“The real question is the independence of the judiciary,” Justice Ahsan asked.
Justice Mandokhail asked whether the act is weakening or strengthening the independence of the judiciary. “I will answer these questions based on the principle of separation of powers and the independence of the judiciary,” the AGP replied, maintaining that the law is not against the independence of the judiciary.
“Mr. Attorney General, these words are not only law, but subject to law,” Justice Minallah said.
Article 191 is different and the rest of the articles you are referring to are different, remarked Justice Akhtar. “The articles you have referred to are fundamental rights.”
The AGP, in response, said that the demand not to exercise the power cannot be construed as the termination of the Parliament’s power.
Justice Mazhar asked the AGP about the usage of the word “law” in Article 191. “In Article 191, law shall mean an act of Parliament,” Awan replied.
Justice Ahsan remarked that the framers of the Constitution could also have said that the SC would make its own rules until any legislation was passed. “It is not clear from the intention of the framers that the SC rules can be changed by legislation,” he added.
Justice Ahsan said Article 191 has nowhere written that a law will be made and rules will be made under it. “The word law in Article 191 does not include the 1956 rules,” the AGP said.
CJP Isa remarked where does the Consitution mention that court decision will also be law. “Adherence to court decisions and their implementation is essential,” he remarked.
“The power to make rules has been given by the constitution to the executive, judicial and Parliament. Are the rules of the executive and Parliament laws?” Justice Ahsan asked.
The AGP, later, stated that the rules of the executive and Parliament have the status of law. “Rules are laws but they shall not be called laws as used in Article 191.”
“The last rules of the Supreme Court were made in 1980, this means the Parliament was sleeping for 43 years?” Justice Naqvi asked.
Awan said it is possible that if the pending cases increase in the Supreme Court, Parliament will have to make another law.
Justice Afridi said there are mistakes in both the Supreme Court and the Parliament. “The SC is an establishment and a Titanic, how can it be turned around here and there at once?” he remarked.
“Why did Parliament remember to enact this legislation after so many years? Was the purpose of the Parliament’s legislation intended to divide the power of an individual?” Justice Mandokhail asked the AGP.
He added that the Constitution does not mention who will make the bench.
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