Intense SC proceedings see back and forth between CJP, judge

ISLAMABAD/KARACHI: During a robust back and forth between bench and counsel during the live proceedings of the SC (Practice and Procedure) Act case, there was an open back and forth also among the bench itself.

It happened as the full court comprising all the 15 judges of the apex court headed by Chief Justice Qazi Faez Isa, heard through live broadcast, identical petitions challenging the Supreme Court (Practice and Procedure) Act 2023. The Full Court comprises Justice Sardar Tariq Masood, Justice Ijazul Ahsen, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice 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.

While MQM-P counsel Faisal Siddiqi was presenting his arguments, Justice Munib Akhtar asked him a question related to the use of the word ‘law’ in Article 191, saying that “first of all, you are asking us to read a definition that does not say law but says Pakistani law in the specific context of Article 191, and the Supreme Court Rules. Okay that is your argument,....”

At this point, Chief Justice Qazi Faez Isa interjected by asking counsel to “Please complete your thought. I don’t know what you are saying. Please complete, so I can understand what you are saying. Then I will understand the question also. Maybe I’m not quick to understand the question; please let us hear it from your mouth and you can complete your submissions”.

Faisal Siddiqi started to answer but at the same time Justice Munib Akhtar started to ask another question to which CJ Isa again asked counsel to “please answer first. A question has to follow a submission. Please can you conclude your submission? Otherwise we’ll have to spend forever on this case.”

Siddiqi responded by saying that “the word ‘law’ as it occurs in Article 191 includes acts of parliament. And an indication of that is given in the [SC] Rules as framed in 1980 because the language for example used in Order 11 talks about: ‘save as otherwise provided by law’. That clearly indicates that one is talking about statutory law”.

Justice Munib Akhtar had another question: “if I may ask: in the 1956 constitution you will recall that there was a specific article which said that words and phrases not defined in the constitution shall have the same meaning as in the General Clauses Act. That was in the 1956 constitution. Is there any equivalent in the 1973 constitution?

When Siddiqi said he was not aware, the chief justice responded to counsel again by asking him to “please persist with your submissions”. However, Justice Munib had another comment: “here we have to look at the word ‘law’ as used in Article 191 because the rule-making power is conferred by Article 191. So any definition, anything that goes in the SC Rules,1980 has to be consistent with the language of Article 191. Kindly focus on that.”

When Faisal Siddiqi replied that he would come to that, CJ Isa said that: “I think counsel is entitled to argue any which way they want to. Let us hear you. I have to hear you decide how you say [it]. And if we have already formed opinions we can reflect them in our judgments. Please continue...”

Responding pointedly to the chief justice’s remark on the bench forming an opinion, Justice Munib Akhtar countered with: “This is not a matter of forming an opinion. This is a question that as a judge of the court I am entitled to ask”. The chief justice’s response was: “of course, ask [the question], but let the counsel finish his submissions”. In what became a debate among the bench itself, Justice Munib said he was “interrupted all the time”, at which Chief Justice Qazi Faez Isa laughingly said “I think the interruption [has been ] of the learned counsel”, asking Siddiqi to move on.

The matter did not end here, with Justice Munib saying he was “asking counsel a question which is my right to ask the counsel.” At this point, the chief justice again reminded the bench that the counsel had to conclude his submissions, adding “with the greatest of respect” [presumably for Justice Munib].

Justice Munib’s reply was to say that if the counsel “does not want to answer, that is his issue. That’s not my issue”, asking Siddiqi if he understood his question.

Faisal Siddiqi managed to then make his submission on the subject of competence, adding that he would respond to the judge’s questions after he had wrapped up his argument regarding competence.

During the hearing, Justice Ijazul Ahsen remarked that an attempt was made to interfere in the independence of the apex court by enacting the law act. The Chief Justice of Pakistan (CJP), Qazi Faez Isa, remarked every institution is responsible for conducting self-accountability.

Earlier, MQP-Counsel Faisal Siddiqui submitted that he would not raise questions over the maintainability of the instant petitions but base his arguments on two judgments of the apex court. On legal precedents, the counsel submitted that whether the Supreme Court (Practice and Procedure) Act, 2023 is violative of the principles of law and Constitution laid down in the Baz Muhammad Kakar case (PLD 2012 SC 923) and the Ghulam Mohiuddin case (Constitution Petitions No21, 22, & 23 of 2023) judgment dated 11.08.2023. He submitted that some parts of these judgments relate to the present case.

The counsel, while referring to the question earlier asked by Justice Ayesha A Malik, said that the word law under Article 191 of the Constitution empowers the parliament to legislate.

Siddiqui said that the word law means that it gives some legal competence. Justice Ayesha, however, observed that if the law was meant as an Act of Parliament, then the framers of the Constitution would have mentioned it. Faisal Siddiqui submitted that the definition of law was written when the Supreme Court rules were being formulated. He submitted that there was no ambiguity about what the word law meant.

Justice Ijazul Ahsen asked the learned counsel as to whether the law under challenge talks about the existing law or a defined law. It’s a defined law, Siddiqui replied. Justice Mansoor Ali Shah observed that if Article 191 is to be read with Legislative Entry 58, then the parliament was fully competent to legislate.

Faisal Siddiqui submitted that there are some restrictions on parliament adding that it cannot interfere in the independence of the judiciary and cannot make legislation that affects the independence of the judiciary.

Justice Ijazul Ahsen observed that the Act has violated the restrictions imposed on parliament. The counsel, however, submitted that the parliament can supervise the Supreme Court. At this, Justice Ahsen remarked that supervising the Supreme Court means to control it. Faisal Siddiqui submitted that the central attention of Article 191 of the Constitution is the Supreme Court, adding that the apex court can frame its practice and procedure under this Article. Justice Ijazul Ahsen at one point observed that the right of appeal in the suo moto case could only be provided through constitutional amendment. The chief justice inquired from the counsel as to whether any political party has voted against the Practice and Procedure Act. The counsel, however, submitted that his client had supported the Act while the attorney general could better respond to this question.

Justice Athar Minallah observed that parliament is competent to make legislation, adding that it has enacted a law that relates to access to justice. The judge observed the jurisdiction of the Supreme Court can be extended in line with the law and added that the only limitation related to the top court’s jurisdiction was mentioned in entry 55.

Justice Mansoor Ali Shah asked the counsel to explain as to how “entries” allowed to increase the scope of Article 184(3) of the Constitution. Faisal Siddiqui, citing the Lahore High Court (LHC) verdict, submitted that parliament can legislate on increasing jurisdiction of the top court. At this, the chief justice asked as to whether the LHC verdict on top jurisdiction was challenged in the Supreme Court. Siddiqui submitted the Competition Commission Act was challenged in the court and the verdict was also announced on the matter.

Justice Ijazul Ahsen asked Siddiqui as to whether the right of appeal could be given under the Constitution as he said that the right to appeal cannot be conferred by sub-constitutional legislation. “I’m talking about the procedure because two wrongs don’t make a right,” Justice Ahsen added.

The counsel for MQM-P, however, submitted that it has to be checked whether there is any restriction on giving the right to appeal in the Constitution or not.

During the hearing, the chief justice asked the learned counsel as to whether the bench of the Supreme Court is to abide by the rules to which the counsel replied in affirmative. The chief justice further asked whether any bench could declare the rules unconstitutional or whether a bench could issue an order regarding the Rules of 1980 of the Supreme Court. The MQM counsel replied the bench can pass an order if such a restriction is present in Article 184(3).

Justice Isa asked: “So all power vests in the CJP, not in the full court because the full court is then dependent on whether the chief justice wants to call a full court meeting or not?” He also told the MQM counsel to answer the questions raised by the bench instead of going round and round. The counsel, however, submitted that the bench could issue an order on the legal status of the rules. Siddiqui then said that the independence of the judiciary would not be threatened if the role of the CJP was reduced.

Justice Shahid Waheed asked the learned counsel as to who will call the full court meeting under Article 191. The counsel replied the chief justice would convene the full court meeting at which the judge asked whether other judges could call the full court meeting for framing rules.

Justice Isa asked that if the CJP was not calling a full court, then there would be a “logjam” and that was the fundamental argument. Justice Waheed said nothing has been mentioned in the Rules about calling the full court meeting. The CJP said every institution was responsible for conducting self-accountability. He added that saying the new law was worse than the incumbent system at the SC was wrong.

At the same time, Justice Minallah asked the MQM counsel if the SC was empowered under Article 191 to remove the difficulties highlighted in court. “The power vests in us. Yes, I don’t see how this law puts the independence of the judiciary under threat,” the lawyer stated. Siddiqui, however, submitted that nothing has been mentioned directly in the rules as well as in the law but it is a practice adding that the chief justice on the administrative side calls the meeting.

Meanwhile, Vice Chairman, Pakistan Bar Council, Haroonur Rashid, also supported the Supreme Court (Practice and Procedure) Act 2023. He said they had earlier demanded the constitution of a full court for hearing these petitions. The chief justice told the PBC vice chairman that without going through his application, they have constituted the full court.

Attorney General Mansoor Usman Awan told the court that he would take only an hour for his arguments. Later, the court adjourned the hearing for Wednesday (today) at 11:30 am wherein the AG will argue before the court.

Pakistan Tehreek-e-Insaf (PTI) and others, including Advocate Muhammad Shafay Munir, Raja Aamir Khan and Chaudhry Ghulam Hussain, had challenged the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023. The Supreme Court is likely to reserve its judgment today in the identical petitions challenging the Supreme Court (Practice and Procedure) Act 2023.