ISLAMABAD: The Supreme Court has resumed the hearing of the petitions challenging the Supreme Court (Practice and Procedure) Act 2023.
Chief Justice of Pakistan (CJP) Qazi Faez Isa-led full-court bench consisting of all 15 judges of the Supreme Court including Justice Sardar Tariq Masood, Justice Ijaz Ul 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 is hearing the case.
The hearing is broadcast live on state-run PTV. It is the fifth live streaming of the hearing.
All the petitioners have already completed their arguments and now Attorney General for Pakistan (AGP) Mansoor Usman Awan is arguing before the bench as the court is expected to conclude the proceedings today.
When the court gathered AGP Mansoor Usman Awan came to the rostrum and started his arguments.
“You are last but not the least, CJP Isa remarked when the AG took to the rostrum.
The AGP said he will respond to the three questions raised during the course of the hearing.
“I will talk about Article 191 and the independence of the judiciary,” he said.
The AGP said he will argue about the Parliament being the master of the roster, the right to appeal and the question of appeal against the decision of a full court.
“The fundamental rights enshrined in Articles 14, 20, 22 and 28 are exercised in accordance with the law,” Awan said, addressing judges of the apex court.
He added that the right to privacy is regulated by law and also spoke about Article 191 empowering Parliament to legislate.
“Are you saying that the word law in Article 191 is different from the use of this word in other constitutional provisions?” the chief justice asked the AGP.
The authority to legislate on the High Treason (Punishment) Act and the Right to Information Act was derived from constitutional provisions, the AGP said.
He mentioned that the Parliament, in these laws, did not rely on the Federal Legislative List.
“Since the Constitution was enacted, no amendments have been made to Article 191,” he said, emphasising that not amending the aforementioned article ensures the judiciary’s independence.
Justice Akhtar remarked that the approval of rules was in the hands of the president or governor-general according to the Constitution of 1956.
“According to you, the Parliament is allowed to amend the rules. If your argument is to be accepted, then why did the Parliament not approve the SC rules before this?” the apex court judge asked Awan.
“Exercising the power does not mean that the power of the Parliament has lapsed,” AGP replied.
He added that the Parliament not amending Article 191 does not mean it is surrendering its authority. “Article 191 contains the word law under which the Practice and Procedure Law is made.”
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 increasing 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 Akhtar asked the AGP why the provincial assembly cannot enact laws.
The CJP raised a question about Constitution makers deliberately using the word Parliament or Law.
He added that they have created the Constitution as a strong book that can be used when needed.
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.
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.
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