An eight-member bench of the Supreme Court rejected on Tuesday a request for the formation of a full court bench to hear the petitions challenging a bill, which has since become an act of Parliament. The law seeks to curtail the powers of the chief justice of Pakistan.

The request was made by Pakistan Bar Council Executive Chairman Hasan Raza Pasha during the court proceedings. The Supreme Court bench met in Islamabad to resume hearing petitions challenging law.

The eight-member SC bench comprises CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyad Mazahar Ali Akbar Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

“Pakistan Bar has always fought for the constitution and judiciary. It would be appropriate if a full court is constituted in this case.” The PBC had also requested to separate Justice Mazahar Naqvi from the larger bench.

The demand came against the backdrop of an alleged audio leak in which Justice Naqvi’s name surfaced. Later, the Khyber Pakhtunkhwa and Sindh bar councils filed a complaint against him before the Supreme Judicial Council (SJC).

The apex court comprises 15 judges, according to the top court website. There are also two ad-hoc members of the Shariat Appellate Bench.

“It is the prerogative of the chief justice to form a full court,” said the CJP on Pasha’s demand for including seven senior judges.

A reference against a judge does not prevent him/her from functioning, said CJP Bandial, adding that the judge cannot be stopped from working until the opinion of the SJC was received. He added that the same decision was taken in the Justice Qazi Faez Isa case.

“Complaints keep coming against the judges, including me; there are complaints against most of the judges of the SC. Political people don’t want justice, they want arbitrary decisions, even in the case of elections, there was a demand to remove some judges and form a full court. The decision of the judges of the Supreme Court is the decision of the court, every institution is bound to implement the orders of the Supreme Court,” he said.

SC seeks record of parliamentary proceedings over law

The SC sought a record of parliamentary proceedings on the Supreme Court Practices and Procedures Bill 2023 from the government. It has also sought the record of debates held during the standing committee meeting.

“This is the first law of its kind in Pakistan,” said CJP Bandial. “This is the law about the third pillar of the state.”

The eight-member bench sought a written response from all parties of the case.

CJP Bandial was of the view that this case was “unique” regarding the independence of the judiciary, adding that freedom of the judiciary was a fundamental right.

He remarked that the previous order was of an interim nature.

“Democracy is one of the main features of the Constitution. An independent judiciary and federation are also important features of the Constitution. It is to be seen that the component of the judiciary can be changed,” he said.

Later, the apex court adjourned the hearing till Monday and sought replies from all political parties and lawyers’ organisations.

Background

The top court has issued notices to the attorney general, the Supreme Court Bar Association, the Pakistan Bar Council, as well as nine political parties – including PML-N, PTI and PPP.

There are three petitions filed under Article 184(3) of the Constitution by Advocate Shafay Munir, Raja Amer Khan, Chaudhry Ghulam Hussain and others against the law.

The three petitions argued that the concept, preparation, endorsement and passing of the Supreme Court (Practice and Procedure) Bill, 2023 was an act “tainted with mala fide”. They urged the SC to strike it down after declaring it to be without lawful authority and of no legal effect.

The SC bench comprises CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyad Mazahar Ali Akbar Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed, according to the roster issued on Saturday.

A joint session of Parliament passed the Supreme Court Practices and Procedures Bill 2023 on April 11 amid protests from the PTI. The bill was presented by Law Minister Azam Nazeer Tarrar that pertains to the CJP’s powers to make benches and take suo motu notices. But, the Supreme Court stopped its implementation through an interim order.

Salient features of law

• Title: This act should be called Supreme Court Practice and Procedure Act 2023. This would be its nomenclature. It shall come into force at once
• Constitution of benches: Every cause, appeal or matter before the Supreme Court shall be heard and disposed of via bench, which will be constituted by a committee comprising the chief justice of Pakistan and two senior most judges in order of seniority. The decision of the committee shall be by the majority.
• Exercise of original jurisdiction by Supreme Court: Any matter invoking exercise of original jurisdiction under clause 3 of Article 184 of the Constitution (any matter on which suo motu notice or the original jurisdiction of Supreme Court) shall be first placed before the committee constituted under Section 2 for examination and if Committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the Committee, for adjudication of the matter. (At least to the three-member bench, it can also increase)
• Intra-court appeal: Intra-court appeal is provided in Section 4 and it shall lie within 30 days from the final order of a bench of the Supreme Court that exercises jurisdiction under Clause 3 to a larger bench of the Supreme Court and such appeal shall for hearing be fixed within a period of not exceeding 14 days.
• Right to appoint counsel of choice
• Application for fixation of urgent matters

Under this law, the power to take suo motu notice and constitute a bench in the Supreme Court will be handed over to a committee comprising the Chief Justice and two senior-most judges instead of the Chief Justice.

President Arif Alvi refused to sign the law made under judicial reforms, after which the bill became law under the Constitution on the expiry of the deadline and the National Assembly Secretariat ordered the Printing Corporation to notify the gazette.

More to follow