A full court bench of the Supreme Court began hearing petitions against the Supreme Court Practice and Procedure bill on Monday, in what could be the last proceedings in the case befroe a verdict is announced. The proceedings are being live-streamed.
At the outset of the previous hearing on October 3, Chief Justice Qazi Faez Isa had said that the court wanted the lawyers to keep their arguments brief as it wished to wrap up the case quickly. The chief justice repeated his wish to wrap the case quickly once again on Monday’s hearing.
Led by CJP Isa, the bench includes 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 Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed, and Justice Musarrat Hilali.
Multiple petitions had been filed against the bill passed during the previous government’s tenure. The bill aimed at limiting the chief justice’s sole powers to form benches and take suo motu notices.
However, prior to the previous hearing, many petitioners including the Pakistan Electronic Media Regulatory Authority and the Intelligence Bureau had requested to withdraw their petitions in the case.
During the hearing, the attorney general said that the government wished to withdraw its main petition filed through the Ministry of Defence.
At the beginning of proceedings, Justice Isa remarked that the ‘burden’ of cases on the court was growing while the full court took up the Practice and Procedure act once again. He added that the judges would lay out their opinions in the written judgement.
He then asked lawyer Abid Zuberi, who was first to come to the rostrum, if he had submitted his objections in writing. When Zuberi replied that he had submitted a written reply at the beginning of the hearing, the judge replied questioned which countries allowed for written replies to be submtted during proceedings.
Justice Isa also objected when Zuberi cited a case from New Jersey’s court, and said that the lawyer should atleast bring a reference from the US Supreme Court.
Justice Ijaz ul Ahsan said that the central question was who had power to make rules for the Supreme Court. He said things can only be done as per the constitution and the constitution gives the power to make rules to the Supreme Court.
However, Justice Athar Minallah remarked that parliament has the right to increase or decrease the powers of the court. He asked if parliament had the competence to legislate on fundamental rights.
Justice Ahsan replied that the issue was not whether the law was good or bad, but if parliament had the power to make it.
Justice Minallah asked if parliament could intervene if the SC was going against the law. He also asked if the chief justice could be questioned for not fixing a case of enforced disappearance before the practice and procedure bill.
On March 30, the Senate passed the Supreme Court (Practice and Procedure) Bill 2023. The bill was aimed at clipping powers of the office of the CJP to take suo motu notice in an individual capacity and exercise discretion in forming benches.
While mentioning the constitution of benches, the bill 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, in order of seniority. The decisions of the committee would be taken by a majority, it added.
The bill said that any matter invoking the use of Article 184(3) of the Constitution would first be placed before the abovementioned committee.
“Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article,” states Article 184(3) that pertains to the Original Jurisdiction of Supreme Court.
“If the 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,” the bill read.
