<\/p>\n
The full court has resumed hearing a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023 \u2014 which requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.<\/p>\n
In keeping with the court\u2019s directives, the hearing is being streamed live on television.<\/p>\n
Headed by Chief Justice of Pakistan Qazi Faez Isa, the bench consists 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.<\/p>\n
In a pre-emptive move, the Supreme Court \u2014 then led by former CJP Umar Ata Bandial \u2014 in April had barred<\/a> the government from implementing the bill seeking to curtail the chief justice of Pakistan\u2019s powers once it became a law.<\/p>\n At the previous hearing, CJP Isa had questioned<\/a> the many legal challenges to parliament\u2019s legislative authority, saying there had been much nit-picking over laws enacted by assemblies, but in the face of martial laws imposed in the country, there was always a complete surrender.<\/p>\n \u201cWe pick errors whenever parliament made a law, but surrender ourselves completely when martial laws were imposed in the country,\u201d Justice Isa said.<\/p>\n \u201cThis Courtroom No.1 carries pictures (of former CJPs) who obviated their oaths by validating martial laws, but nobody moves petitions to express opposition [to their action], except when parliament enacts laws,\u201d Justice Isa quipped during a televised hearing. Justice Isa had intended to wrap up the case the same day, but it was adjourned till today due to time constraints.<\/p>\n At the outset of today\u2019s hearing, Supreme Court Bar Association (SCBA) President Abid Zuberi said that Article 175(2) and Article 191 had been quoted in the Act. He read out Article 191 which states: \u201cSubject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Cou\u00adrt\u201d.<\/p>\n The lawyer contended that the \u201conly authority that can make rules regulating the practice and procedure of the court is the honourable SC and not Parliament\u201d.<\/p>\n He said that \u201csubject to the law and the Constitution\u201d did not mean that Parliament could legislate in this regard. \u201cIf rule-making power is made subject to legislation, then the rule-making power of the SC will become functus officio,\u201d he said.<\/p>\n He further contended that constitutional grant of rule-making power was construed as a continuing power, \u201cso there cannot be any limitations on that\u201d.<\/p>\n However, CJP Isa stated that under the counsel\u2019s arguments six words of the Constitution could be deleted \u201cas rendered meaningless\u201d. \u201cI am reading it like that if I accept your contentions,\u201d Justice Isa said.<\/p>\n Zuberi contended that \u201csubject to\u201d meant that it was restrictive in nature because a constitutional power, which was a continuing power, was being given to the SC.<\/p>\n The lawyer said that if the Constitution was giving the legislature power for rule-making, it used specific words. He referred to Article 154(5), which states: \u201cUntil Majlis-i-Shoora makes provision by law, the Council [of Common Interest] may make its rules of procedure\u201d. He also referred to Article 6(3) and Article 151(2).<\/p>\n Justice Akhtar asked whether subsequent legislation could \u201cdisplace\u201d rules that were lawfully and constitutionally framed by the apex court.<\/p>\n \u201cNo, they cannot for the simple reason that it will become ad nauseam. For example, can now the SC make a law regulating its practice and procedure overriding Parliament\u2019s? Where will we stop?\u201d Zuberi contended.<\/p>\n At one point, CJP Isa remarked, \u201cThe day we hear this case, the weeks we hear this case, our institution exceeds our disposal. The day we don\u2019t, our disposal exceeds our execution. If you think this is a never-ending hearing, this is the last day of the hearing.\u201d<\/p>\n He urged the SCBA president to continue his arguments in the case, telling him to move on to the next point. He expressed displeasure with Zuberi submitting documents to the court during the hearing.<\/p>\n \u201cThis is most unfair. We had asked people to file [\u2026] We have told everybody to file [\u2026] And is this an easy thing to read? Could you not have done this before?\u201d he asked Zuberi.<\/p>\n Moving on with his arguments, the SCBA president said that Article 175 gave Parliament the power to legislate but it also had to be read with Article 142(A) and Entry 55.<\/p>\n \u201cDoes Article 191 confer jurisdiction or does it confer power?\u201d asked Justice Ahsan.<\/p>\n \u201cI would say it confers power,\u201d Zuberi said. He said that the most important word used in the provision was \u201cregulate\u201d.<\/p>\n \u201cArticle 191 is not a jurisdiction conferring article it is a power conferring article. And there is a distinction between jurisdiction and power,\u201d Justice Ahsan remarked.<\/p>\n Continuing his arguments, the counsel said that the power exercised under Article 191 was a constitutional power which vested the SC to regulate its practice and procedure, adding that Parliament could not interfere in this regard.<\/p>\n He said that the words \u201csubject to\u201d meant that it was not an enabling provision but rather a restrictive provision.<\/p>\n \u201cIf you argue in context of Pakistan and why presumably the legislature enacted this law [\u2026] they are giving a right of appeal under Article 184(3). You [have not talked] about how Article 184 has been used. Either say it is being used correctly or incorrectly or sometimes being used correctly and sometimes incorrectly. Say something,\u201d Justice Isa told the lawyer.<\/p>\n He said that the SCBA president had not brought a petition before the court and asked what his \u201canxiety\u201d was with regards to the law. CJP Isa then asked about how Article 184(3) had been used.<\/p>\n \u201cHuman rights cell, is it mentioned in any rule or law? Put Parliament aside. Is there any mention in our own rules?\u201d CJP Isa said. He went on to say that Article 184(3) as far as habeas corpus was concerned, there was mention of it in the rules.<\/p>\n \u201cBut the other powers used under Article184(3) were those mentioned in the rules or not?\u201d he asked. Justice Isa said that Article 191 did not stated that the chief justice could make the rules or a human rights cell.<\/p>\n \u201cBefore the world raises a finger, I raise a finger on myself. Powers used under Article 184(3) in thousands of cases \u2014 some were of general public interest [but] some became personal \u2014 you are not explaining this,\u201d CJP Isa said.<\/p>\n He said that how Article 184(3) had been used was a \u201creality of Pakistan\u201d. He told the lawyer to either argue that it had been used correctly or to say it was not and then give a remedy.<\/p>\n \u201cIf a mistake has been made, then whose responsibility is it to find a remedy? The biggest responsibility is of this court. After that maybe Parliament. If we have made a mistake then we should rectify it. If Parliament has made a mistake then it should rectify it. If we don\u2019t correct our mistake, then can Parliament?\u201d Justice Isa said, remarking the the counsel was overlooking whatever had happened in Pakistan.<\/p>\n CJP Isa remarked that the SCBA president was representing a particular party, to which Zuberi said he was not. The lawyer stated that he was appearing on behalf of the bar association.<\/p>\n More to follow<\/em><\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":" The full court has resumed hearing a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023 \u2014 which requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court. 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