An eight-member bench of the Supreme Court, hearing petitions against law clipping CJP’s powers, ordered on Monday the attorney general for Pakistan to submit a record of parliamentary proceedings by tomorrow (Tuesday).

An eight-member SC bench led by Chief Justice Umar Ata Bandial had resumed the hearing of petitions.

The eight-member bill includes

• Justice Umar Ata Bandial
• Justice Ijaz ul Ahsan
• Justice Munib Akhtar
• Justice Mazahar Naqvi
• Justice Muhammad Ali Mazhar
• Justice Ayesha A. Malik
• Justice Syed Hassan Azhar Rizvi
• Justice Shahid Waheed

Today’s hearing

AGP Mansoor Usman 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.

AGP Mansoor Usman 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 remarked that the government’s petition had not yet been fixed for hearing. He asked the AGP whether the documents sought by the court at the previous hearing had been submitted.

Awan replied that he had formally and informally approached the speaker’s office. “The judiciary’s independence is a fundamental element of the Constitution. Judicial independence is a fundamental component of the Constitution,” the AGP added.

The AGP contended that the constitution of the benches and the matter of appeals were fixed in the law. “The right to change counsel has also been given in the court reforms bill. The matters decided in the law are of administrative nature,” he said and argued that the SC’s rules were formulated by a full court.

Justice Ijazul Hassan remarked that “the question is of legislative powers, not of amending the rules”.

‘Does the government want to take advantage of the full court?’

Justice Mazahir Naqvi wondered “has there been such legislation in the past?” To this, the AGP said that until 1992, the permission of the president was required to make the rules.

Justice Naqvi wondered how can such legislation be made in the “presence of Article 91 of the Constitution?”

AGP Awan replied that the president’s authorisation had been withdrawn. The provision of making the rules in accordance with the Constitution and law was retained, he said, adding that there has never been such a case in the past, so a full court should be constituted.

Justice Ayesha Malik remarked that many cases are first of their kind. “Any bench of the Supreme Court can hear any case, does the government want to take advantage of the full court?” she asked.

She asked: “Does the government want the internal discussion of the court to come out? Every case is important, how can one be sure which case will be heard by the full court? Was every case of judicial independence heard by the full court?”

The AGP replied that many cases, including one pertaining to the former CJP Iftikhar Chaudhry, were heard by the full court.

CJP Bandial remarked that since 1996 cases of independence of the judiciary were being heard. “Apparently, it is not your case that a full court should be formed.”

Justice Ayesha wondered what the AGP implied with his statement. “What you want to say is that the people have faith in the full court. How should the court regulate its proceedings at the request of the petitioner?”

‘Parliament is satisfied with five judges, so why not AGP?’

On the arguments of the AGP, Justice Mazahir Naqvi observed that the Iftikhar Chaudhry case was of a “different nature”.

Justice Muneeb Akhtar remarked that the full court has the “authority to make rules” in administrative matters. “If the case of interpretation of the rules comes before a three-member bench, should it also be heard by the full court?” he asked and added that the full court has made its rules.

The AGP replied that in the present case the legislative authority has been challenged.

“Your logic is incomprehensible. The decision of the full court will be good and the decision of the three-member bench will be bad,” Justice Ayesha Malik remarked.

Justice Ijazul Hassan inquired: “Do you think that if the rules are made by the full court, then the interpretation should be the same.”

Justice Akhtar remarked that the answer to the full court has been given by Parliament itself in the law it has made. According to the bill, a five-member bench would hear the case of interpretation of the Constitution. “Either you say that Parliament has made the law wrong.”

AGP Awan said that the court has stopped the implementation of the law. To this, Justice Akhtar asked: “If there was no injunction, where would the request of the full court go?”

Justice Akhtar said that according to Parliament there should be a five-member bench and the AGP demands for a full court. “It seems that the government’s calculation has weakened as to how many judges are sitting here.”

AGP Awan argued that the request of the full court could be made if it seemed appropriate. “At least five judges are written in the law”.

Justice Akhtar said: “Parliament is satisfied with five judges, so why not the Attorney General?”

Justice Ayesha said that the court normally hears petitions against the laws. The high court also hears petitions against laws. “Has a full court been requested in the High Court as well?” she asked.

Justice Naqvi remarked: “This is not the first case of its kind. A similar case has been heard in 2012 as well. It is written in the full court petition that the bench has given its mind in the injunction order.”

Justice Akhtar inquired that “will 60 judges in Lahore High Court and 40 judges in Sindh High Court hear proceedings?”

The court then directed the AGP to submit the parliamentary proceedings’ record by tomorrow and adjourned the hearing for three weeks.

Last hearing

In the last hearing, the top court rejected Pakistan Bar Council Executive Chairman Hasan Raza Pasha’s request for the formation of a full court bench to hear the petitions challenging the bill.

The SC also 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.

The government has asked the court to reject petitions asking for the bill to be scrapped. It has also filed a separate request asking for the matter to be referred to a full court bench.

The government has maintained the position that striking down the bill would amount to an encroachment into the business of creating legislation, which is the prerogative of the parliament.

The court had stopped the bill from taking effect on April 13 even though the bill had not even received presidential consent at that point.

Salient features of the bill

The bill aims to clip the CJP’s powers to form benches and take suomotu notices. However, the bill came at a time when the parliament and judiciary are locking horns over elections in Punjab.

• 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

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][4] 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.