ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa on Tuesday questioned how the Supreme Court (Practice and Procedure) Act of 2023 could diminish the powers of the apex court. Emphasizing the importance of consultation in decision-making, he stated that Islam made it obligatory for people to consult with others before making decisions on matters.
He made these remarks as a full court, comprising the Chief Justice and 14 judges of the Supreme Court, resumed hearing pleas against the law that requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court. The full court hearing was telecast live on the state-run television channel PTV.
The top court decided that October 9th (Monday) would be the last date for the hearing and cautioned that proceedings could continue until midnight to conclude the hearing.
Throughout the proceedings, Chief Justice Isa continually challenged the lawyers for their views on the constitutionality of the act. He questioned whether the Parliament had the authority to enact such legislation and whether it infringed on the judiciary’s independence. The exchanges were lively, with the petitioner’s lawyer, Ikram Chaudhry, arguing that Parliament had “bulldozed” judicial independence through the act.
The petitioner’s lawyer said that Parliament had severely encroached upon the judiciary’s independence through the enactment of the Practice Act. He contended that the Act amounted to an infringement on the judiciary’s jurisdiction, creating a significant constitutional challenge.
In response to Chaudhry’s assertions, Chief Justice Isa posed a critical question, asking whether the lawyer intended to rely solely on newspaper reports to support his arguments. Chaudhry, however, explained that they lacked access to the official records of Parliament’s proceedings, prompting a query from Chief Justice Isa regarding whether they had formally requested the Speaker to provide the records.
Does Supreme Court Practice Act Violate the Constitution?
He pressed the counsel to address whether the Supreme Court Practice and Procedure Act indeed violated the Constitution, seeking a clear legal perspective. The lawyer had previously argued that the Supreme Court had the power to strike down any legislation it deemed unconstitutional.
In response, Chief Justice Isa pointed out that the Supreme Court had previously declared, through the 21st Amendment, its ability to review constitutional amendments, highlighting the Court’s role in safeguarding constitutional principles.
He questioned whether the independence of the judiciary should only be defended by the courts, or if Parliament’s actions, such as prioritizing cases involving widows, could also impact this independence.
He questioned whether the independence of the judiciary should only be defended by the courts, or if Parliament’s actions, such as prioritizing cases involving widows, could also impact this independence. Chief Justice Isa remarked that there are photographs of judges in this courtroom who had seemingly strayed from their oaths and endorsed martial laws in the country.
The lawyer representing the Pakistan Tehreek-e-Insaf (PTI), Uzair Bhandari, put forth an argument asserting the supremacy of rules over laws, citing established judicial precedents. Justice Minallah sought clarification, asking whether laws enacted by Parliament or rules should take precedence. Bhandari responded by expressing his belief that rules should prevail because they are established within the framework of the Constitution itself.
Chief Justice Isa intervened, highlighting that Article 204 of the Constitution did not inherently grant the right of appeal, and it was Parliament that introduced this right through an Ordinance. Chief Justice Isa further questioned the lawyer by asking where it was explicitly stated in Article 204 that the right to appeal would be accessible. He then defended the concept of providing the right to appeal, even in cases of high treason, asserting that affected parties should have the opportunity to appeal. Addressing the PTI lawyer’s objections to the Supreme Court’s law, Chief Justice Isa questioned why PTI didn’t debate on this matter in Parliament. He said that PTI should have chosen to address this issue within the parliamentary arena.
Later, the top court adjourned the hearing until October 9 and decided that the apex court would conclude the hearing that day.
