—— Justice Isa says parliament should not be hampered from doing good just because it lacks two-third majority
By Asghar Ali Mubarak
ISLAMABAD: The parliament’s intentions were good, said Chief Justice of Pakistan (CJP) Qazi Faez Isa on Monday as the top court resumed hearing pleas challenging the Supreme Court (Practice & Procedure) Act 2023.
The CJP was responding to arguments made by petitioners’ counsels reasoning that the parliament should not have legislated upon the apex court’s rules.
The parliament should not be hampered from doing good just because it lacks the two-third majority needed to pass a constitutional amendment, he remarked, at another point during the hearing.
Review petitions filed against the law curtailing CJP’s powers are being heard before a full court. The apex court aimed to conclude the case today, on the third day of proceedings, after hearing all parties.
However, the court adjourned the hearing for further arguements from counsels of all parties till 11:30am on Tuesday (tomorrow).
Headed by Chief Justice of Pakistan Qazi Faez Isa, the full bench comprises Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Jus-tice Aminuddin Khan, Justice Mazahar Ali Akbar Naqvi, Justice Jamal Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.
Last week, during the second full court hearing of the pleas, the CJP had stressed the need to give due respect to parliament, warning that a failure to do so could result in the country being governed not by its Constitution but by the verdicts delivered by judges.
The chief justice remarked that the Practice and Procedure Act limits the powers of the chief justice on theh one hand but, on the other, divides these powers among two other judges.
Chief Justice Isa pointed out that the law would also apply to future chief justices and judges. At the last hearing, CJP Isa remarked that, “The [judges] forget the oath when martial law is imposed, but remember it as soon as the parliament does something.” He proceeded to point out that there hung many pictures of judges in this courtroom who forgot their oaths when martial law was imposed.
The chief justice recalled that the apex court upheld martial laws on several occasions, adding that the judges violated their oath and allowed the Constitution to be interfered with.
In their arguments, the lawyers, who had challenged the act, also admitted that Article 184(3) – which pertains to the suo motu powers of the apex court – had been misused and overused in the past.
The CJP further questioned that if one day the court deemed a decision to be correct, and wrong the next day, “What will you say then? Is the Supreme Court the king of the jungle”?
In this manner, he continued, the country will not be governed by a constitution, rather by laws shaped by the decisions of the judges.
Emphasising on understanding the reality, instead of drumming up assumptions, the chief justice ob-served that admitting a mistake was necessary for rectification.
He pointed out that the SC was still the central authority in this act as it did not speak of transferring the powers to anyone outside this building. At the third hearing today (Monday) Justice Minallah asked if the parliament could not intervene when the apex court was violating fundamental rights by excersiding jurisdiction of public interest under Ar-ticle 184 (3) of the Constitution of Pakistan.
Justice Mandokhail observed that the SC exercised power under Article 184 (3) in violation of the Con-stitution.
Meanwhile, CJP Isa noted that the intent of parliament was good. He asked SCBA President Abid Zuberi as to how power under Article 184 (3) had been used in the past. How was the SC Human Rights cell working in the past, he asked.
Zuberi conceded that powers under Article 184 (3) were misused but, he observed, the parliament was not the forum to correct the SC’s mistakes.
During the hearing, Justice Ahsan noted that the Constitution had given a scheme regarding the sepa-ration of powers. “If we open the door for the parliment to infere in every matter related to the SC then there is no end to it. There will be good or bad legislation in the future,” he added.
Commenting on the Act in question, Justice Akhtar asked whether this was an indirect constitutional amendment.
“We should keep in mind the history of the country,” observed the CJP. “Let’s not crumple the parlia-ment,” he said.
Meanwhile, Justice Naqvi wondered why the parliament did not make such a law for the high courts or the Federal Shariat Court.
To this, Justice Ahsan replied that the Lahore High Court had prevented the parliament from making rules related to it. He asked how could the parliament displace rules made by the court itself. He ob-served that Article 191 was not about jurisdictional conferring power.
The question here is about legislative competence, he remarked, adding that the present law might be very good.
Whereas, Justice Akhtar questioned whether this law was an assault on the soul of the Constitution.
