Submit NA record today, SC orders AG

By Sohail Khan

ISLAMABAD: The Supreme Court Monday questioned the constitution of full court for hearing the pleas, challenging the law curtailing the suo motu powers of chief justice of Pakistan as well as formation of benches.

An eight-member bench — headed by Chief Justice of Pakistan Justice Umer Ata Bandial— heard the petitions challenging the Supreme Court (Practice and Procedure) Act, 2023.

The other members of the bench included Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Sayed Mazahir Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Mrs Ayesha A Malik, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed.

Both the federal government as well as Pakistan Muslim League Nawaz (PMLN) had prayed the apex court to constitute a full court for hearing the matter. At the start of hearing, the chief justice asked Attorney General for Pakistan Mansoor Awan as to why the record of the parliamentary debate on the Supreme Court (Practice and Procedure) Bill 2023 had not been submitted yet.

The AG replied that he had requested the National Assembly speaker to provide the relevant record and assured the court that it would be submitted on Tuesday (today). The court then directed the AG to ensure that the record was filed not later than Tuesday. The court questioned the formation of full court as demanded by the government and the PMLN.

Commencing his arguments, the attorney general submitted that they had filed a CMA requesting for constitution of a full court for hearing the matter adding that the Act was related to the independence of the judiciary, suo motu powers of the chief justice as well as constitution of benches besides relating to the right of appeal against the decisions passed by the apex court under Article 184(3) of the Constitution.

He further submitted that the matters settled by the law also related to some administrative issues adding that the law will also be applicable directly to the judges who were not hearing the instant matter under challenged.

The AG submitted that as the rules for administrative powers of the Supreme Court had been framed by the full court; therefore, the bench should examine the constitution of a full court to hear the pleas challenging the Supreme Court (Practice and Procedure) Act, 2023.

“But the root question before the court is the legislative competence and not amendments to the rules,” Justice Ijazul Ahsen asked the AG saying in routine matter, the court heard cases relating to the legislative powers.

Justice Mazahir Ali Akbar Naqvi asked the AG if there was any precedent available regarding the legislation of such a law to which the AG replied that earlier the president’s permission was required for amending rules; however, such permission of the president was taken away.

Justice Naqvi, however, observed that Article 191 of the Constitution clearly empowered the Supreme Court to make rules for regulating its practice and procedures. “How the Parliament can pass a law when the Constitution has empowered the apex court to make rules for dealing with its administrative affairs?” Justice Naqvi asked the AG.

The attorney general, however, replied that as such kind of case had not come before the apex court in the past, it would be appropriate that a full court heard the pleas, challenging the law passed by the government.

Justice Ayesha A Malik observed that every case that came to the court was importance and any bench of the apex court could hear that. “Whether the government wants to take advantage of the full court and whether public trust is only in the full court?” Justice Ayesha A Malik asked the AG.

She further asked whether the government wanted to take out the internal affairs of the court and whether every matter regarding the independence of the judiciary was heard by a full court.

Chief Justice Umer Ata Bandial observed that a full court was needed when there was a complicated issue but in this case, the Constitution was very much clear about the powers of the Supreme Court.

“As regards the independence of the judiciary as well as the Constitution, these are very important and we will need your assistance,” the CJP told Mansoor Awan The AG, however, recalled that former chief justice Iftikhar Muhammad Chaudhry’s case was heard by a full court of the apex court.

Justice Munib Akhtar observed that the full court was competent to make rules to regulate the administrative affairs of the apex court. The judge questioned if a case regarding the rules of the Supreme Court had come before a three-member bench and whether it should also be required to be heard by a full court.

Justice Munib Akhtar observed that the parliament had itself settled the issue of full court in the Judicial Reforms Bill and held that five members were sufficient to hear a particular case. “Look at your own law which says five members can interpret the rules while you stresses for constitution of a full court,” Justice Munib Akhtar asked the AG.

“When the parliament is satisfied with five judges, then why not the AG as well,” Justice Munib Akhtar remarked. “We have strong reservations about your request for constituting a full court,“ said Justice Mazahir Ali Akbar Naqvi.

Justice Ayesha A Malik observed that even the high court also heard cases related to legislation and questioned whether such a request was also made before the learned high courts. Justice Ijazul Ahsen remarked that if the Supreme Court issued orders for constituting a full court, then the high court would be bound to forms full court as well.

Justice Munib Akhtar asked whether 60 judges in the Lahore High Court and 40 in the Sindh High Court will hear the matter. The attorney general, however, submitted that as the judicial reforms bill was not challenged before the high court; therefore, he will not argue on that.

Justice Shahid Waheed asked the attorney general whether the sitting bench could ask the chief justice to constitute a full court. The Attorney general submitted that the judges could ask the chief justice to constitute a full court.

The AG further submitted that the decisions of the court were meant for future and maybe after 20 years the ground realities and constitution would be different. Meanwhile, Barrister Salahuddin, counsel for PMLN submitted that they had also filed a CMA, requesting for constituting a full court.

He submitted that keeping in view the sensitivity of the instant Act under challenge, it would be appropriate to constitute a full court for hearing it. He submitted that for the first time an Act of Parliament was stayed by the apex court before its enactment and its operation was halted.

He submitted that usually the request for constitution of a full court was made before the courts. In this regard, he cited the case of Justice Qazi Faez Isa wherein he said the court had held that for the freedom of all persons, the full court was constituted.

Justice Ijazul Ahsen however, observed that the matter of Justice Qazi Faez Isa was referred to the chief justice as he was not hearing the judge’s case adding that a seven-member bench had directed the constitution of a full court. Salahuddin also cited the case of former chief justice Iftikhar Muhammad Chaudhry wherein the full court was constituted.

Chief Justice Umer Ata Bandial, however, observed that the cases of both the judges were filed on the references sent by the president. “When an allegation is made against the judges, then the Supreme Court is on trial,” the CJP said, adding that the full court was constituted when the matter was of serious nature.

Meanwhile, the court adjourned the hearing for three weeks as the chief justice said one of the bench members would not be available. The court also directed the attorney general to ensure filing of the whole record of the National Assembly as well as Standing Committee.

Online adds: Meanwhile, the National Assembly (NA) speaker has refused to provide record of the house and standing committee on law to Supreme Court (SC) immediately. Clear reply has been given to Attorney General for Pakistan (AGP) office that the decision for providing the record will be taken by the special committee, constituted by the house.

The NA Secretariat refused to provide the record in respect of proceedings of NA and standing committee on law and justice taking place during the approval of Supreme Court Practice and Procedure Act. It informed the AGP office that NA Speaker Raja Pervez Ashraf had assigned the matter of provision of record to a special committee on the demand of lower house. The special committee, constituted under Aslam Bhootani, will meet in parliament house on Tuesday (today). Other members of committee are Shahida Akhtar Ali, Muhammad Abu Bakar, Chaudhry Muhammad Barjees Tahir, Sheikh Rohail Asghar, Syed Hussain Tariq, Naz Baloch, Khalid Hussain Magsi, Wajih Qamar and Dr Muhammad Afzal Khan Dhandla.

The committee has also been directed to probe the audio-tape matter regarding son of former chief justice of Pakistan (CJP) Saqib Nisar. The NA speaker will make his final opinion on the recommendations of the committee.