CJP’s remarks came during live hearing of proceedings on petitions challenging SC Practice and Procedure Act 2023
Chief Justice of Pakistan Qazi Faez Isa presides the televised full court hearing on September 18, 2023, in this still taken from a video. — YouTube/PTV News Live
ISLAMABAD: Chief Justice of Pakistan Qazi Faez Isa said Tuesday that the apex court had endorsed martial law several times in the past and many judges forgot their oath after the imposition of martial law. He further said the apex court cannot allow anyone to disrupt the country, adding that the parliament should be respected. “Everyone is just attacking the parliament.”
The CJP’s remarks on Tuesday came during the second live hearing of the proceedings on the petitions challenging the Supreme Court (Practice and Procedure) Act 2023, the law seeking to curtail CJP’s discretionary powers. CJP Isa was heading a full-court bench — comprising 14 judges of the Supreme Court — and decided that October 9 (Monday) would be the last date of hearing and cautioned that proceedings could continue till 12am. Earlier, the top judge hinted at concluding proceedings in the day, saying too many cases are pending in the apex court. He also directed the petitioner’s counsel to complete his arguments in 10 minutes. The proceedings of the case were broadcast live by state-run PTV. The full court bench includes CJP Isa, 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. At the last hearing, the apex court’s full court had sought replies from all parties by September 25.
On Tuesday, CJP Isa directed the PTI lawyer, Uzair Bhandari, to read the first page of the Constitution. At this, the lawyer maintained that the first sentence of the Constitution says that the authority to be exercised by people within the limits prescribed by Allah is “a sacred trust”. At this, the CJP asked if guidance could be taken from the Holy Quran while deciding this. “Surah Aal-Imran states that consultation should be held,” he said, adding that the guidance should be taken from the Quran instead of American examples. CJP Isa then asked what harm could the right to appeal have on anyone. He said the Holy Prophet Muhammad (PBUH) did everything after consultation, while the parliament also stated that the chief justice should decide matters through consultation instead of deciding unilaterally.
CJP Isa said the powers of the chief justice are not being curtailed through this legislation rather they are being devolved among the judges. He said the impact of this law will be particularly on the chief justice and the two senior-most judges. As Bhandari cited Article 175(1) to support his argument, the CJP asked if he was suggesting that the chief justice was omnipotent. Justice Isa gave what he called an “absurd example” of revoking Bhandari’s license and barring him from appearing court “in a fit of rage”. “What can you do? Nothing … surely we are also human beings … I remain vulnerable and that’s what your mighty teaches us that you will make mistakes,” the top judge said. He further stated that the lawyers themselves had pointed out that Article 184 was often used incorrectly and the Parliament saw this. “Therefore they gave a right of appeal.” “You can raise a finger on the Parliament but you are quiet on the omnipotence of the chief justice,” Justice Isa said.
CJP Isa said the right of appeal is not given in Article 204 and parliament gave this in the Article through Ordinance. The top judge said the Supreme Court disqualified the prime minister under Article 184 (3). “Where is it written in Article 204 that the right of appeal will be available?” the CJP asked. “Is it wrong to give the right to appeal? Even in high-treason cases, affected parties will have the right to appeal,” the CJP said in response to PTI’s lawyer’s objection to the SC law. “Couldn’t the political party have this beautiful debate in the parliament?” CJP Isa asked the PTI lawyer. To which, the lawyer said he was not responsible for the political decisions taken by the party. CJP Isa observed that the PTI should have taken up this matter in parliament.
Here, Justice Munib Akhtar observed that the apex court did not need the right to appeal in order to correct its past verdicts. He asked whether section 3 of the law was in direct conflict with Article 184(3).
After the court met again following a 30-minute break, PTI lawyer Uzair Bhandari argued that rules were above the laws as per the judicial precedents.
“Shall a law made by the parliament prevail or the rules?” asked Justice Minallah. The lawyer replied that as per his understanding rules would prevail as the “rules are made under the Constitution”.
Presenting his arguments, the petitioner’s lawyer Ikram Chaudhry said parliament bulldozed the independence of the judiciary through the Practice Act. “Parliament tried to breach jurisdiction through the Act,” he added. Lawyer Chaudhry also pointed out that it was imperative to review the situation of the parliament at the time it passed the act.
Chaudhry said that Article 239 barred the government from making constitutional amendments without having a two-thirds majority. Justice Ahsan then went on to say that Parliament was not competent to make the Act as it “essentially requires a constitutional amendment which is a totally different species of laws and which requires a totally different procedure which Parliament needs to adopt. And since that procedure has not been adopted it can be argued that Parliament was not competent to make this law which has the effect of amending the Constitution.” “Yes, my lord. That’s my submission,” Chaudhry said.
“Will you base your arguments on newspaper reports?” the CJP said. To this, the lawyer said they did not have a record of parliament’s proceedings. “Did you request the speaker in writing to provide you with the record of the proceedings?” the CJP inquired. CJP Isa also told the counsel to avoid political discussion in the court after the latter read out the statement of former prime minister before the bench. “Don’t do politics here, [forum of] media is available. Go and do politics there,” the CJP remarked. The CJP said some people believed that the Supreme Court and parliament have come face to face over this law. “I will not use the word war,” the CJP remarked.
The CJP said the Supreme Court Practice and Procedure Act has now become law and added that the debate should not be held on whether parliament could have enacted legislation or not. “Supreme Court Practice and Procedure Act is against the Constitution or not, tell me,” CJP asked the counsel. Responding to the lawyer’s argument that the apex court has powers to strike down any legislation, the CJP Isa said the Supreme Court declared in the 21st Amendment that it can also review the constitutional amendment. “The independence of the judiciary is only for courts to defend?” the CJP asked. “If parliament makes a law to give priority to widows’ cases [then] that too will affect the independence of the judiciary?” the CJP added.
After lawyer Chaudhry completed his arguments, another petitioner’s counsel Hasan Irfan took the rostrum. He told the bench that the Constitution made the use of Article 184 (3) mandatory on the Supreme Court. At which, the CJP said: “You are saying that the not only Chief Justice has the power of Article 184-3, but the entire Supreme Court can exercise it?”
Justice Ahsan said Article 191 empowers the Supreme Court to make its own rules of procedure. “The Supreme Court Practice and Procedure Act has devolved the powers of the chief justice to a committee of judges,” Justice Ahsan remarked. He further said the apex court itself can divide its powers into one or as many judges. “The powers of the Supreme Court are sacred,” Justice Ahsan remarked.
Justice Minallah said the Act made access to justice easy. “[…] does the parliament not have the powers to bring transparency in the internal affairs of the Supreme Court?” asked Justice Minallah. Justice Minallah further inquired from the counsel as to how the fundamental rights pertaining to access to justice of the people were affected by the Act. Lawyer Irfan asked whether the chief justice and the judges’ committee have the discretionary authority to take notice of the violation of his rights. Responding to this, Justice Minallah asked whether the right to access justice was affected when the suo motu powers rested with the chief justice.
“When martial law is imposed, everyone surrenders their weapons. There are many pictures [of judges] in this room who forgot their oath after the imposition of martial law,” CJP Isa remarked after the lawyer read out the judges oath in the court. CJP Isa said the apex court had endorsed martial law several times in the past, adding that an individual was responsible for the destruction of the country. He further said the apex court cannot allow anyone to disrupt the country, adding that the parliament should be respected. “Everyone is just attacking the parliament,” the CJP said while emphasising that there was a need to review whether the law is in the interest of the people or not. “We have to decide among ourselves, what is your problem with the judges,” the chief justice remarked while referring to the reservations on judges’ committees formed under the law to take decisions on suo motu cases.
