Apex SC should acknowledge mistakes of endorsing martial laws: CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa on Tuesday highlighted the havoc being wrought by individuals wielding unchecked power, when martial law is imposed, the solemn oath taken by judges often fades into oblivion, but the judiciary swiftly reacts when parliament enacts laws.

The CJP boldly asserted that the apex court should acknowledge its past mistakes concerning its endorsement of martial laws.

Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa made the compelling remarks during hearing of the Supreme Court Practice and Procedure Act case on Tuesday.

A full court bench of the Supreme Court is hearing petitions challenging the SC (Practice and Procedure) Act 2023. The bench, headed by CJP Isa and comprising all 15 judges of the Supreme Court, is hearing the pleas.

The full court bench, led by CJP Isa, 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.

The hearing was adjourned till Monday, October 9.

The highly anticipated case is being broadcast live on state television, as cameras from PTV have been installed inside Courtroom No.1. The hearing commenced at 9:30am today.

Earlier at the start of hearing, the chief justice said the law affected the CJP and the two senior-most judges of the SC. He added that the law would also apply to future chief justices and senior judges of the apex court.

Elaborating further, Justice Isa stated that he felt that he should not have been part of the bench, however, as the law affects all judges of the apex court, it was decided that a full court will hear the case.

The chief justice said that the court wants to “try to conclude [the case] today”, and added that if lawyers wanted to make additional arguments, they can submit a detailed response.

Advocate Ikram Chaudhry, starting his arguments, read the opening paragraph of the SC (Practice and Procedure) Act and argued that the opening indicated that the law was being enacted for a certain or “specific purpose”.

The chief justice asked Chaudhry whether the law stated the same or was he implying it and cautioned the counsel against putting words in a statute “which don’t exist”. “If this is your impression then say so.”

The lawyer, referring to the provision of appeal under the new Act, said “additions” to Article 183 can only be made with a two-thirds majority in the Parliament and added that Section 8 of the Act had “bulldozed” the concept of the judiciary’s independence.

Chaudhry stated that an “effort has been made” to encroach upon a domain that does not fall under the purview of the parliament. He further said that a “truncated” Parliament passed the law and it did not have the authority to make constitutional amendments.

The lawyer also argued that the Act “denies the Constitution itself”. “When there is a law, fundamentally unconstitutional, it would be within the Supreme Court’s authority to look into it and declare it ultra vires.”

Justice Isa then questioned the lawyer what he exactly meant by the independence of the judiciary, “Is it unique or is it for the people and their rights? Is it a standalone concept that should be defended?”

At one point during the hearing CJP Isa remarked that havoc was being created by individuals. He noted that when martial law is imposed, every judge forgets the oath but when Parliament makes a law we react and remind lawmakers about their oath.

The apex court should admit its mistakes regarding endorsement of martial laws, said the CJP.

Lawyers have historically raised criticism that the top court has misused its jurisdiction under Article 184 (3) of the Constitution of Pakistan.

Meanwhile, Justice Minallah inquired as to to how access to justice was being impacted due to this law.

The petitioner’s lawyer Ahmed Irfan argued during the hearing that the law affects the right of access to justice.

At this, Justice Minallah asked whether access to justice would not be affected if the CJP holds the exclusive right to form benches and fix cases.

Justice Ahsan was of the view that the first question to be addressed was if any law affects the independence of judiciary does it directly affect fundamental rights.

The right to justice will be affected if there is no appeal against a full court’s decision, remarked Justice Ayesha Malik.

At this, Justice Mazhar observed that were many laws where the right to appeal was provided.

As the proceedings went on, the full court bench debated on the Parliament’s competence to make laws about the internal workings of the top court, with CJP Isa wondering how the Act being challenged by the petitioners affected the independence of the judiciary.

Elaborating on the Act itself, Justice Minallah told the petitioner’s counsel that the 2023 law has two purposes – it ensures access to justice by providing right of appeal against judgments given under the jurisdiction of Article 184 (3) of the Constitution and thereby it ensures internal independence of the judiciary.

He questioned whether the Parliament was not competent to do so.

At one point during the hearing, Justice Ahsan also asked the petitioner to inform the court on whether there was legislative competence to make a law about the internal workings of the apex court. If the Parliament is indeed competent, then explain as to how this law is in conflict with the Constitution, he remarked.

During the hearing, lawyer Hassan Irfan, advocating for petitioner Mudassar Hassan Jura, pointed out that the bill was sent to the president for his assent but an objection was raised by Dr Arif Alvi. This implied that there was a “dispute” within the Parliament over the passage of the bill.

With regards to Article 184 (3), lawyer Irfan argued that the Act replaced the apex court’s function and transferred it to the committee, which, he contended, might not be considered as a judicial function and instead could be seen as an administrative function.

At one point during the hearing, the top judge remarked that it needed to be ascertained whether the law effected the benefits or the loss of the people or rather the benefits to the chief justice.

CJP Isa also chided the counsel for the petitioner for jumping from one law to the other without completing arguments for any law he brought up during arguments.

When the hearing resumed after a short recess, arguments continued on the Parliament’s powers to legislate on the internal workings of the court.

When PTI’s counsel Uzair Karamat Bhandari took the rostrum, he apprised 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.

He argued that Parliament’s legislative powers were drawn from Article 142 and a set of provisions enshrined within the Constitution. The question that arises is whether Article 191 on its own is a source of legislative power.

Article 191 reads: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Cou­rt”.

“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 that the Parliament had invoked, namely Articles 175(2) and 191.

Article 175(2) provides that no court will have any jurisdiction unless conferred on it by the Constitution or by under any law.

Referring to Article 142, Bhandari then contended, “so the legislative power is conferred with respect to identified subjects and the appropriate legislature is identified”.

“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,” asked CJP Isa.

To which the lawyer replied in the affirmative.

The proceedings paused for a second recess.

At one point before the second recess, CJP Isa remarked that under the Act, powers were not being taken away from the SC.

He inquired whether the petitioner’s counsel was of the view that more minds would be destructive to the inherent power granted under Article 184.

The top judge observed that while the CJP’s powers were being curtailed, the powers of the institution – the Supreme Court – were increasing.

He further remarked that it was “wrong” if the courts were making laws. “Their power is to interpret law. If a law violates some constitutional provisions, strike it down,” he said, stressing again that he did not feel as if the court’s powers had been taken away through the Act.

After the hearing resumed, Justice Minallah posed a scenario before the petitioner’s counsel and asked that if the Parliament enacts a law pertaining to data protection, which is in conflict with the rules made by the apex court under Article 191, would the rules prevail or the act?

To this, the counsel, citing Entry 55, replied that the rules would prevail.

According to Bhandari, it was possible for Parliament to provide rules for practice and procedure when there was an express statutory power by virtue of “an express matter in the Constitution”, not otherwise.

He referred to the trial and conviction of former premier Yousuf Raza Gillani for contempt and contender that the procedure followed by the top court was the one laid down in the Contempt of Ordinance, not the SC rules.

The counsel argued that when Parliament enacts a law on a subject on which the Constitution explicitly authorises it to enlarge the jurisdiction of the top court, was then it may also prescribe practice and procedure for that particular subject.

The power to “regulate the exercise of the power of contempt” would include the power to frame a law, he contended, adding that this in turn allowed for trial and creation of an appellate forum.

To this, CJP Isa said that this in was “exactly what has been done” in the Act in question as well.

After hearing further arguments from the parties involved, the court adjourned the hearing till October 9.

‘Undermines independence of judiciary’

Meanwhile, ahead of the hearing, in a separate application filed in the case, Pakistan Tehreek-e-Insaf (PTI) has submitted additional documents and requested that they be made part of the case record.

The petition argues that the Constitution clearly defines the powers of the administration, legislature, and judiciary based on the principle of the trichotomy of exercise of powers.

It further asserts that the SC (Practice and Procedure) Act undermines independence of the judiciary, and was an attempt by the PDM government to interfere in the affairs of the judiciary by establishing a parallel system with the top court.

The plea emphasises that the constitution outlines the powers of the SC and the chief justice of Pakistan and legislation that goes against fundamental rights and the independence of the judiciary cannot be upheld.

The petition also contends that in the presence of the Supreme Court Rules, 1980, legislation regarding the Supreme Court cannot be enacted.

It is pertinent to note that in the last session, a 15-member larger bench led by Chief Justice Qazi Faez Isa heard the petitions against the law curtailing CJP’s powers.

During the session, the CJP made a point that the Act which was passed by parliament, does not take away the chief judge’s authority by giving it to a three-person committee.

In its short order, the 15-member full-court bench lifted the stay order over the implementation of the Act.

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