ISLAMABAD: On Wednesday, the Supreme Court upheld parliament’s authority to make laws by rejecting all nine objections to a statute requiring the composition of the Supreme Court benches by a committee of three senior judges.
The Supreme Court (Practise and Procedure) Bill 2023 was passed by the previous coalition government with the intention of reducing the authority of the top justice of Pakistan. The law removes the discretion of the chief justice to issue personal notice of his or her own accord.
The Supreme Court issued a short order that read, “The Supreme Court (Practise and Procedure) Act, 2023 (‘the Act’) is sustained as being in accordance with the Constitution of the Islamic Republic of Pakistan and to this extent the petitions are dismissed” (with Justices Ijazul Ahsan, Munib Akhtar, Sayyed Mazahar Ali Akbar Naqvi, Ayesha A Malik, and Shahid Waheed dissenting).
After all respondents had finished their oral arguments, Pakistan’s Chief Justice Qazi Faez Isa issued the brief order that had been reserved earlier by the 15-member full court bench.
Headed by Chief Justice Isa, the bench consisted of Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.
The brief order continued, “Sub-section (1) of Section 5 of the Act (granting a right of appeal prospectively) is declared to be in accordance with the Constitution and to this extent the petitions are dismissed” (with Justices Ijaz ul Ahsan, Munib Akhtar, Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi, Ayesha A Malik, and Shahid Waheed dissenting).
The majority of the court also ruled against a section of the law that would have allowed appeals to be filed in retroactive cases. This effectively precludes any further challenges to the Panama case verdict.
Subsection (2) of Section 5 of the Act (granting a right of appeal retroactively) is declared to be ultra vires the Constitution and to that extent the petitions are allowed (with Chief Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah, and Justice Musarrat Hilali dissenting).
Former chief justices and other judges who share their views on the need of preserving the rule of law were greatly relieved by the ruling.
When all respondents had finished presenting their cases, the highest court had already reserved its judgement. The chief justice made history when he ordered the whole Courtroom No. 1 hearing to be broadcast live. There were a total of fifteen judges on the bench.
It’s time for the hearing
Wednesday’s hearing kicked up with opening statements from Pakistan’s attorney general, Mansoor Usman Awan. He stated that the government’s written response filed in court will serve as the basis for his oral arguments.
The chief justice questioned, “You are saying you will not repeat the arguments but will highlight them,” and the lawyer responded, “That is correct.” AGP Awan responded that he will discuss Article 191 of the Constitution and judicial independence.
In Article 191 (Rules of procedure), it is stated that “Subject to the Constitution and law, the Supreme Court may make rules regulating the practise and procedure of the Court.” There were three questions brought up during the hearings, and the AGP stated that he will address them.
He argued that parliament’s ability to pass laws was not impaired by Article 191. Awan argued that “Parliament has not limited its right to legislate” despite granting the judiciary “its independence.”
Here, Justice Akhtar noted that, prior to 1973, the governor general or president had to approve any changes to the rules governing the Supreme Court. According to the AGP, Article 191 places no limits on the ability of parliament to make changes to the regulations.
When Justice Ahsan inquired, “Are you saying that there are no restrictions on parliament amending the rules formulated by the Supreme Court?” the speaker responded in the affirmative. Is the Supreme Court free to change legislation passed by Congress, then?
Awan said that the institution responsible for making laws was parliament. He also said that if the Supreme Court’s caseload reached 70,000, new legislation might be necessary.
Meanwhile, Justice Naqvi questioned whether the AGP had produced the tally of lawmakers who had discussed the practise and procedure bill in parliament. Awan retorted, “It’s there on the website.”
Chief Justice Isa once observed that different institutions should be “pitted against each other” with mutual respect. “In my view, parliament upheld the authority of the Supreme Court.
Parliament had the opportunity to take additional action but elected not to. I think parliament trusts us enough to keep them from taking that step,” he said.
The chief judge added that the case’s scope must not be broadened. “Neither we nor Parliament consider each other to be enemies. He then said, “Both can function in tandem.”
