SC resumes hearing pleas against law limiting CJP’s powers

The full court has resumed hearing a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023 — which requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.

In keeping with the court’s directives, the hearing is being streamed live on television.

Headed by Chief Justice of Pakistan Qazi Faez Isa, the bench consists 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.

In a pre-emptive move, the Supreme Court — then led by former CJP Umar Ata Bandial — in April had barred the government from implementing the bill seeking to curtail the chief justice of Pakistan’s powers once it became a law.

At the previous hearing, CJP Isa had questioned the many legal challenges to parliament’s legislative authority, saying there had been much nit-picking over laws enacted by assemblies, but in the face of martial laws imposed in the country, there was always a complete surrender.

“We pick errors whenever parliament made a law, but surrender ourselves completely when martial laws were imposed in the country,” Justice Isa said.

“This Courtroom No.1 carries pictures (of former CJPs) who obviated their oaths by validating martial laws, but nobody moves petitions to express opposition [to their action], except when parliament enacts laws,” Justice Isa quipped during a televised hearing. Justice Isa had intended to wrap up the case the same day, but it was adjourned till today due to time constraints.

At the outset of today’s hearing, Supreme Court Bar Association (SCBA) President Abid Zuberi said that Article 175(2) and Article 191 had been quoted in the Act. He read out Article 191 which states: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Cou­rt”.

The lawyer contended that the “only authority that can make rules regulating the practice and procedure of the court is the honourable SC and not Parliament”.

He said that ‘subject to the law and the Constitution’ did not mean that Parliament could legislate in this regard. “If rule-making power is made subject to legislation, then the rule-making power of the SC will become functus officio,” he said.

He further contended that constitutional grant of rule-making power was construed as a continuing power, “so there cannot be any limitations on that”.

However, CJP Isa stated that under the counsel’s arguments six words of the Constitution could be deleted “as rendered meaningless”. “I am reading it like that if I accept your contentions,” Justice Isa said.

Zuberi contended that ‘subject to’ meant that it was restrictive in nature because a constitutional power, which was a continuing power, was being given to the SC.

More to follow