A full court bench of the apex court on Tuesday resumed proceedings into petitions against the Supreme Court (Practice and Procedure) Act, 2023, with judges remaining divided over the question of Parliament’s “competency” to legislate limits to the unfettered powers of the Chief Justice of Pakistan (CJP).
The hearing, broadcast live on TV, saw CJP Qazi Faez Isa questioning why petitioners were so eager to challenge legislations brought forward by elected lawmakers even as they ignored blatantly illegal actions such as past martial laws. “We pick errors whenever Parliament makes a law, but surrender ourselves completely when martial laws are imposed in the country,” he said, pointing to pictures of former CJPs who had violated their oaths by validating martial laws.
“[But] nobody moves petitions to express opposition, except when Parliament enacts laws,” he remarked in the second hearing of the case. At the outset, the CJP said he wished to wrap up the case in this session, but it was eventually adjourned until Monday after beginning at 9:30 a.m. and ending at 4:35 p.m., with two breaks of 30 minutes each.
As seen during the first hearing of the full court last month, lawyers spent more time responding to observations and questions of judges than presenting their arguments. In a bid to restrain this, the CJP advised the counsels to submit in writing their arguments and responses.
“Instead of ignoring, we should respect Parliament,” said the CJP, referring to past cases such as the 1955 Maulvi Tamizuddin case; 1956 Dosso case; 1977 Nusrat Bhutto case; and 2000 Zafar Ali Shah case in which individuals were vested with absolute decision-making power. He also reiterated his confusion over petitioners having an issue with the legislation even as most judges did not and noted that Islam made it liable for people to consult others before deciding on matters. “They have amended the Constitution in the garb of simple legislation,” argued one of the petitioners’ counsel, claiming it interfered in the independent functioning of the judiciary.
To this, the CJP questioned how this legislation harmed the public interest. “Had the Supreme Court remained confined to its domain, Parliament would not find the need to provide appeals against decisions taken under this provision,” he observed.
Continuing his opposition to the legislation, Justice Munib Akhtar corrected the CJP by recalling that the court had set aside the decision to legitimize the 1958 martial law through the Asma Jillani case. He observed that if Parliament has to intervene in the fixation of cases, then there would be no end to it and the concept of separation of powers would become illusory. Similarly, Justice Ijazul Ahsan remarked appeal was a substantive right and must be granted in a substantive manner. “The basic question which needed to be answered is which entity could provide the appeal against 184(3) decisions,” he remarked, noting the Constitution does not provide any appeal on suo motu decisions. “The appeal can only be provided through a constitutional amendment and not through a simple legislation,” he said.
Justice Athar Minallah, however, observed that after 2010, the apex court had excessively relied on Article 184(3), or its power of suo motu. He said this was why Parliament had felt the need to provide a remedy through law. Justice Mansoor Ali Shah, meanwhile, noted that Article 191 of the Constitution authorized Parliament to legislate on practice and procedure.
The PTI’s lawyer, Uzair Bhandari, argued that while his client believed in Parliament’s authority to legislate, this power was limited and Parliament was not competent to provide an appeal against decisions taken in Article 184(3) cases. The CJP questioned the lawyer on whether he could commit to repealing the law if his client came into power. When the lawyer replied in the negative, the CJP observed this could perhaps be because it would benefit the party in that situation.
He also gave an “absurd” example of what recourse a lawyer would have if the CJP decided to ban him from appearing before the court. Justice Akhter said judges had a retirement age and this could be reversed when they left office. At this, the CJP observed that “no one can touch him until he retires.” “We also have a Supreme Judicial Council,” responded Justice Akhtar. “And how effective has the SJC been?” questioned Justice Shah.