Battle for records of proceedings in NA, apex court: SC, parliament embroiled in tit-for-tat row

ISLAMABAD: Hours after the Chief Justice of Pakistan Umar Ata Bandial sought the record of parliamentary proceedings on the Supreme Court (Practice and Procedure) Bill 2023 on Tuesday, Defence Minister Khawaja Asif asked the NA speaker to seek the record of judicial proceedings from the Supreme Court.

Speaking on the floor of the House on Tuesday, Defence Minister Khawaja Muhammad Asif said the time has come that parliamentarians rise for the defence of parliament. He said that a confrontation between institutions could be natural but observed there were differences within the Supreme Court of Pakistan. He said they asked parliament to go for negotiations but first, the Supreme Court should hold talks within itself. “Supreme Court has no role to give directions for talks,” he said.

Later, Chairman of the Public Accounts Committee (PAC) Noor Alam Afridi and PPP’s Aslam Bhotani asked the chair to refuse the record to the Supreme Court.

Without naming Imran Khan, Defence Minister Khawaja Muhammad Asif said that he got a facilitator in 2018 to come into power and now again he has got facilitators adding that two other prime ministers were deprived of representing their constituencies while Nawaz Sharif was disqualified for life. “We should protect our prime ministers regardless of their political affiliations,” he said adding that politicians should forget their differences and stand to defend the parliament.

He said who would be held accountable for the dictatorial period of 1958 when a person breached the Constitution and remained imposed for 10 years and then the Musharraf era came. “From the case of Justice Munir to the case in which Zulfikar Ali Bhutto was convicted and numerous cases later, who will be held accountable and whether those proceedings will also be sought by parliament?” he asked. Khawaja Asif wondered what the Supreme Court did to correct and purify its past. The defence minister went on to say that the government respects the top court but it should operate within its constitutional domain.

The defence minister said politicians paid the price for supporting dictators but what price did the judges pay and how many of them were disqualified and added that only two of them were sent home. “Did anybody ask where are judges like Shaikh Riaz, Naseem Hasan Shah, Irshad Hasan Khan and Abdul Majeed Dogar?” he said.

“Those who are alive and played a role in the abrogation of the Constitution should be summoned in the parliament to hold them accountable and tried for treason. They should be tried so that the people come to know what they did starting from 1947,” he said adding that they (the judiciary) attacked the Constitution far more times than the politicians.

Asif claimed that the Supreme Court was attempting to prevent the federal government from completing its term. “This parliament functions under the Constitution and there will be no ultra-Constitution measures,” he said. Alluding to the judges, he said that traffic is closed for them when they arrive with an escort but the same is not the case with the parliamentarians. “We receive Rs168,000 in salaries but they are paid heavy salaries besides pensions and lifetime facilities,” he said.

Asif said he and his father, in total, spent 72 years but got no plots. “If they had stayed on seats for this much time, they would have received 11 to 12 plots. A house committee must be constituted to inquire into the history of the judiciary and the cases of Zulfikar Ali Bhutto, disqualification cases of Yousaf Raza Gilani and Nawaz Sharif and abrogation of the Constitution. “Where is it written that the Chief Justice would collect funds for dams? By doing so, he made people a damn fool,” he said.

The defence minister maintained that parliament would not surrender and would not allow it to sacrifice its prime minister at any cost. He said the government crossed its limits and agreed on two appointments to appease them. Parliament must rise to the occasion. The same judiciary victimized judges like Qazi Faez Isa and Shaukat Siddiqui, saying that Siddiqui’s salary and pension were stopped and his license to practice was also cancelled.

He asked the chair to write a letter to the Chief Justice to seek a record of the Supreme Court when they said two judges refused to be a part of the bench and then a 3-2 decision was given.

Speaking next, PPP’s Aslam Bhotani questioned how the Supreme Court could seek records of proceedings of parliament and its standing committees. “We will have to pick courage and defend ourselves,” he said. Bhotani said the speaker should flatly refuse the Supreme Court the record of proceedings of parliament. “You should seek a sense of the House and refuse to provide records to the apex court,” he said adding that they would proceed on retirement while issuing contempt notices.

Muhammad Abu Bakar of MQM said judges of the Supreme Court ordered the demolition of Nasla Tower and a public park in Karachi, rendering thousands jobless and shelterless only for the sake of their ego.

Chairman of the Public Accounts Committee (PAC) Noor Alam Afridi, while referring to the Constitution, said there is freedom of speech in parliament and elected representatives enjoy immunity for what they say on the floor of two houses, saying the apex could not change the parliament. He said that as per the Constitution, parliament, PAC or any standing committee could seek records of any institution. “The Constitution authorizes the PAC to seek accounts record of Supreme Court, high courts and defence ministry,” he said.

Noor said he was writing to the Principal Accounting Officer of the Supreme Court to come to PAC and answer questions from its members. Noor Alam said parliamentarians declare their assets and the same should be followed by the judges. He said that retired judges are paid Rs1.2 million pensions per month, and free petrol with vehicles and staff. “No parliamentarian gets a pension or such privileges and perks,” he said.

Speaking on a point of order, Maulana Abdul Akbar Chitrali of Jamaat-e-Islami questioned whether the Supreme Court took any suo motu notice when the National Assembly passed bills that clashed with the Islamic injunctions. He also questioned whether the Supreme Court rejected appeals of some banks against the Federal Shariat Court’s verdict against an interest-based economic system.

Earlier in the day, the Supreme Court observed that for the first time in the country’s history, the basic structure of the Constitution regarding the independence of the judiciary and fundamental rights had been violated through a piece of legislation. The court also sought the record of the debate held in parliament and the Standing Committee on Judicial Reforms regarding the Supreme Court (Practice and Procedure) Bill 2023.

An eight-member larger bench of the apex court, headed by Chief Justice Umer Ata Bandial, heard pleas challenging the Supreme Court (Practice and Procedure) Bill 2023 that aimed at curtailing the powers of suo moto jurisdiction of the Chief Justice of Pakistan as well as the constitution of benches.

Other members of the bench include Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Sayyed Mazahir Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Mrs Ayesha A Malik, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed. Attorney General told the court that Barrister Salahuddin would represent PML-N, Zahid Ibrahim PMLQ, while Kamran Murtaza will represent JUI-F and Khwaja Tariq Raheem, Pakistan Tehreek-e-Insaf.

Chief Justice Umer Ata Bandial observed that political entities had diluted the judicial process and they don’t want justice but stick to pick and choose and want decisions as per their desire. The court rejected the plea of the federal government seeking to vacate its stay order, suspending the operation of the Supreme Court (Practice and Procedure) Act, 2023, that aimed at curtailing the powers of the Chief Justice of Pakistan on suo moto jurisdiction as well as the constitution of benches.

The court also rejected the plea of the Pakistan Bar Council (PBC) seeking the formation of a full court, inclusion of senior-most judges on the bench hearing the instant matter as well as the expulsion of Justice Mazahir Ali Akbar Naqvi from the bench against whom complaints of misconduct had been filed in the Supreme Judicial Council (SJC).

During the course of the hearing, Chief Justice Umer Ata Bandial observed that for the first time in the country’s history, basic structure of the Constitution regarding the independence of the judiciary and fundamental rights has been violated through a piece of legislation.

“Independence of the judiciary is the basic fundamental right, which is also the basic feature and structure of the Constitution, therefore, we have to examine at the touchstone whether the salient features of the Constitution could be modified or changed through a piece of legislation,” the Chief Justice remarked adding that this fact regarding independence of the judiciary cannot be changed as well.

The chief justice observed that all the respondents will consider the instant matter seriously and will assist the larger bench to arrive at a solid conclusion as the matter relates to the third organ of the state and its independence as well. “We expect that all should file their respective concise statements on the important constitutional issue which is under challenge before the court,” the Chief Justice remarked.

The Chief Justice asked Attorney General Mansoor Awan to read specifically Entry 55 of the Federal Legislative List having some restrictions with regard to legislative powers. “Politics has tainted the judicial process,” the country’s top judge remarked. He maintained that there are also some limitations and restrictions of the federal list with respect to legislative powers. “See section 55 of the Federal Legislative List,” the CJP said.

He added that an independent judiciary is a fundamental component of the Constitution and it cannot be changed. “Certain manipulations were made through the present legislation regarding the powers of the Supreme Court, therefore, you must bring that law as well,” the Chief Justice asked Attorney General.

Earlier, at the start of the proceedings, Khwaja Tariq Raheem, counsel for Pakistan Tehreek-e-Insaf, informed the court that the judicial reform bill has become a part of the law. The Chief Justice, however, observed that the court has passed an interim order, staying the impugned law adding that democracy is also a significant part of the Constitution so as the independence of the judiciary and the Federation.

On this point, the court also summoned complete records of the proceedings held on the floor of the National Assembly as well as the debate held in the Standing Committee on Judicial Reforms on Supreme Court (Practice and Procedure) Bill 2023. The court directed Attorney General Mansoor Usman Awan to provide the whole details until May 8.

The attorney general requested the court to vacate its stay order on the Supreme Court (Practice and Procedure) Act, 2023. The court rejected his plea. During the hearing Hassan Raza Pasha, Chairman Executive Committee of Pakistan Bar Council (PBC) demanded the formation of a full court, the inclusion of senior most judges on the bench hearing the instant matter as well as expulsion of Justice Mazahir Ali Akbar Naqvi from the bench against whom complaints of misconduct had been filed in the Supreme Judicial Council (SJC) besides restraining them from doing work. He submitted that they have always fought for the independence of the judiciary and rule of law hence he requested the court to include other senior judges in the bench adding that if seven senior judges were included in the bench then nobody will raise objections. Chief Justice Umer Ata Bandial rejected the request of PBC and observed that all the judges on the bench are highly respectable and should be respected as well. Under Rules 1980 of the Supreme Court, the constitution of benches is the prerogative of the Chief Justice”, the Chief Justice told Pasha. Referring to the exclusion of Justice Naqvi from the bench, the Chief Justice recalled that filing of a reference against a judge has no legal importance until it is fixed for hearing.

The chief justice recalled that in former Chief Justice Iftikhar Muhammad Chaudhry’s case PLD 2010, this court had clearly addressed the issue holding that a judge cannot be stopped from working until the decision of the Supreme Judicial Council (SJC). Similarly, the Chief Justice observed that this court has also given the same judgment in Justice Qazi Faez Isa’s case as well. Complaints against judges including myself are being filed regularly”, the Chief Justice said adding that they all will go but the bench, bar and this institution (Judiciary) will remain. The Chief Justice further observed that it was also held by this court in Justice Iftikhar’s case that only the President can file a reference against a judge of the superior judiciary.

The Chief Justice observed that politics has diluted the judicial process adding that political entities don’t want justice but stick to pick and choose and wants decisions of their choice.“Find out please as to what does full court really means in the eyes of people”, the Chief Justice asked Hassan Raza Pasha adding that earlier, the demand of the full court and removal of judges was also made in the matter pertaining to delay in election’s case.

The Chief Justice reiterated that the decision of the judges of the Supreme Court is the decision of the court hence the CJP made it clear that under Article 190 of the Constitution that all the institutions of the country are duty-bound to implement the orders of the Supreme Court in letter and spirit. The court later adjourned the hearing until May 8.