ISLAMABAD, MAY 8: An eight-member larger bench of the Supreme Court (SC) grilled Attorney General of Pakistan (AGP) Mansoor Usman Awan over the government’s plea to form a full court to hear a set of petitions against a law aimed at limiting the powers of the chief justice of Pakistan (CJP).
The bench comprised CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.
At the last hearing on May 2, CJP Bandial had sought the record of National Assembly (NA) proceedings from when the bill, which has since become an act of Parliament, was deliberated upon by the House.
The bench had directed the attorney general for Pakistan (AGP) to furnish copies of the proceedings of the standing committee and the House “to understand the concerns and views of the lawmakers while passing the bill”.
The CJP had also put the Pakistan Bar Council’s (PBC) request for a full court aside, observing that it would be considered again during the next hearing.
Subsequently, the government requested the SC to form a full court to consider important questions regarding the judiciary’s independence and parliament’s powers to regulate the court’s procedure. Separately, the government also asked the court to dismiss the challenges to the law.
At the outset of today’s hearing, AGP Awan informed the court that a plea had been filed for the formation of a full court to hear the case. “The PML-N has also filed a petition for the formation of a full court,” he said.
Justice Ahsan noted that the government’s plea had not yet been fixed for hearing. He then asked the AGP whether the documents sought by the court at the previous hearing had been submitted.
Awan replied that he expected to receive the record of parliamentary proceedings by tomorrow and had also contacted the NA speaker in this regard.
“The judiciary’s independence is a fundamental element of the Constitution,” the AGP added. He said that the law in question had set out the procedure for constituting benches as well as dealing with appeals.
“The matters decided in the law are administrative in nature,” he said, arguing that the SC’s rules were formulated by a full court.
He said that decisions and cases concerning the judiciary’s independence and rules should involve a full court, adding that the law would also be applicable on judges that were not hearing the case.
Justice Ahsan, however, said that the matter at hand concerned the power to legislate and not changes to the SC rules. “Various benches have been routinely hearing cases relating to legislative powers,” he said.
At this point, Justice Naqvi asked if such a law had been enacted in the past. The AGP responded by saying that the president’s permission was required for making rules until 1973.
Justice Naqvi then asked how such a law could be passed when Article 191 of the Constitution was present.
Article 191 states the following: “Subject to the Constitution and law, the SC may make rules regulating the practice and procedure of the court.”
The AGP contended that such a case had not been filed in the past and, therefore, a full court should be constituted.
“Many cases are the first of their kind. Any of the Supreme Court’s benches can hear any case,” Justice Malik said. She also questioned whether the government wanted to avail the “advantage” of a full court.
She then questioned whether the government wanted the top court’s internal discussions to come out in the open. “Every case is important. How can it be determined whether a full court should hear a [particular] case? Did a full court hear every case related to the judiciary’s independence?” she asked.
She also asked whether the AGP was trying to say that the nation had demanded a full court. “How can the court regulate proceedings at the whims of the petitioner?” she questioned.
The AGP conceded that a full court had not heard every case related to the judiciary’s independence but highlighted that several cases, including the Iftikhar Chaudhry case, were heard by a full court.
“The Iftikhar Chaudhry case was of a different nature,” Justice Naqvi said.
Justice Akhtar then stated that the full court had the power to formulate rules for administrative matters. “If a case concerning the [SC] rules comes up before a three-member bench, should that also be heard by a full court?” he asked.
Justice Malik went on to state that the AGP’s argument was “beyond comprehension” as it indicated that a decision made by a full court was good and one made by a three-member bench was bad.
Justice Ahsan then asked whether the AGP was trying to say that since a full court constituted these rules then it should also interpret them. He observed that under the new law, a five-member bench would hear cases concerning the Constitution’s interpretation.
The AGP stated that the top court had barred the government from implementing the law.
“Parliament says there should be a five-member bench [whereas] the attorney general says there should be a full court. It seems that the government’s [ability to] count has weakened,” Justice Akhtar remarked. “If Parliament is satisfied with five judges, why isn’t the attorney general?” he asked.
Justice Ahsan then observed that the respective high courts would be bound to constitute a full court if the top court issued an order. “If the provincial assembly passes a rule of this nature, will the entire high court hear the case?” he asked.
The AGP, referring to a past case, said, “Zulfikar Ali Bhutto objected on the bench in his case. There was an objection to the judges and a nine-member full court heard the case.”
“Then chief justice Anwarul Haq dismissed the objection. The chief justice himself was also included in the nine-member full court. In the present petition, there is no objection on any judge or chief justice,” he said.
Here, the CJP observed, “If there is an objection, the judge has to decide if he wants to hear the case or not.”
CJP Bandial then remarked, “In the future, have to ascertain under what circumstances can the bench say to constitute a full court. The court needs further assistance on this.”
The AGP said that the matter did not only concern the interpretation of the Constitution. He said that the SC had upheld the establishment of military courts in the country.
The CJP observed that the case at hand did not concern a constitutional amendment.
However, AGP Awan said that the court’s decision were meant for the future. “Perhaps after 20 years, the ground realities and the Constitution may be different,” he said as he wrapped up his arguments for the formation of a full court to hear the case.
At this point, the CJP asked whether the PML-N’s plea for the formation of a full court had been fixed for hearing. The party’s lawyer, Barrister Salahuddin, said that the plea was submitted today and had been fixed.
The PML-N’s lawyer argued that the implementation of a law had been barred by the court for the very first time. He further said that pleas were routinely filed for the formation of a full court, adding that a full court was constituted to hear the Justice Qazi Faez Isa case.
Justice Ahsan said that the case concerning Justice Isa was sent to the CJP, adding that the top judge himself did not hear the case.
The CJP then remarked that the Iftikhar Chaudhry and Justice Isa cases were based on presidential references. The SC is on trial when allegations are made against judges. A full court was constituted due to its serious nature,“ he said.
Justice Akhtar then said that the law made by Parliament talked about a five-member bench hearing the case. “How can the PML-N file a plea for the petition of a full court?” he asked.
The court then directed the AGP to submit the parliamentary proceedings’ record by tomorrow and adjourned the hearing for three weeks.
Bill becomes law
Article 184(3) of the Constitution sets out the Supreme Court’s original jurisdiction, and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
The bill, titled the Supreme Court (Practice and Procedure) Bill 2023, was aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity.
The draft law was initially passed by both houses of Parliament in March and sent to the president for his assent. However, the president had sent it back, saying that the proposed law travelled “beyond the competence of parliament”. The bill was subsequently adopted by a joint session of parliament on April 10 — albeit with some amendments.
Meanwhile, the top court — while hearing three petitions challenging the then-bill — in an “anticipatory injunction” on April 13, barred the government from enforcing the draft law, saying the move would “prevent imminent apprehended danger that is irreparable” as soon as it became an act of parliament.
“The moment that the bill receives the assent of the president or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the act that comes into being shall not have, take or be given any effect nor be acted upon in any manner,” said the interim order issued by the eight-member bench.
The ruling coalition government was swift to reject the apex court’s ruling and on April 19 the president again refused to give his assent and sent the draft law back to Parliament.
Despite this, the bill technically became an act of parliament on April 21 under Article 75(2) of the Constitution, and despite the court’s order halting the law’s implementation, the National Assembly Secretariat formally asked the Printing Corporation of Pakistan (PCP) to publish it in the official gazette.
Article 75(2) of the Constitution says that when the president has returned a bill to the parliament, it shall be reconsidered in a joint sitting. If it is again passed, with or without amendment, by the votes of most members of both houses, it is again referred to the president for their assent. If the bill was not signed by the president within 10 days, their assent would have been deemed granted.
According to the legislation, a three-member bench consisting of the CJP and the two senior-most judges of the apex court will decide whether to take up a matter suo motu. Previously, this was solely the prerogative of the chief justice.
The law also states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench, which will be formed by a committee comprising the chief justice and the two senior-most judges.
The legislation also includes the right to file an appeal within 30 days of the judgement in a suo motu case and that any case involving constitutional interpretation will not have a bench of fewer than five judges.
The bill would allow former prime minister Nawaz Sharif and other parliamentarians disqualified by the Supreme Court under suo motu powers (such as Jahangir Tareen) to appeal their disqualification within 30 days of the law’s enactment.