{"id":13189,"date":"2023-10-11T16:27:08","date_gmt":"2023-10-11T16:27:08","guid":{"rendered":"https:\/\/news.pakistaninewspaperlist.com\/law-aimed-at-clipping-cjps-wings-sustained-as-being-constitutional-sc-rules-in-majority-verdict\/"},"modified":"2023-10-11T16:27:08","modified_gmt":"2023-10-11T16:27:08","slug":"law-aimed-at-clipping-cjps-wings-sustained-as-being-constitutional-sc-rules-in-majority-verdict","status":"publish","type":"post","link":"https:\/\/pakistaninewspaperlist.com\/news\/law-aimed-at-clipping-cjps-wings-sustained-as-being-constitutional-sc-rules-in-majority-verdict\/","title":{"rendered":"Law aimed at clipping CJP\u2019s wings \u2018sustained as being constitutional\u2019: SC rules in majority verdict"},"content":{"rendered":"<p><\/p>\n<div dir=\"auto\">\n<p>The Supreme Court, in a full court session on Wednesday, ruled that the <a rel=\"noopener noreferrer\" target=\"_blank\" class=\"link--external\" href=\"https:\/\/na.gov.pk\/uploads\/documents\/6424209d648ed_306.pdf\">SC (Practice &amp; Procedure) Act, 2023<\/a> \u2014 which requires a committee of senior judges to form benches for constitutional matters and suo motu notices \u2014 was \u201csustained as being constitutional\u201d and rejected petitions against the law in a majority verdict.<\/p>\n<hr\/>\n<p><strong>Key takeaways from today\u2019s verdict:<\/strong><\/p>\n<ul>\n<li>SC upholds practice and procedure law with a 10-5 majority<\/li>\n<li>Part of the act that talks about future appeals accepted with a 9-6 majority<\/li>\n<li>Part of the act that talks about appeals for past cases rejected with an 8-7 majority<\/li>\n<\/ul>\n<hr\/>\n<p>Reading the reserved verdict, Chief Justice of Pakistan (CJP) Qazi Faez Isa said that \u201ca majority of 10-5 (Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting), the SC Practice and Procedure Act 2023 is <mark>sustained as being in accordance with the Constitution of the Islamic Republic of Pakistan and to this extent, the petitions are dismissed\u201d.<\/mark><\/p>\n<p>\u201cBy majority of 9-6 (Justice Ahsan, Justice Akhtar, Justice Afridi, Justice Naqvi, Justice Ayesha and Justice Waheed dissenting) sub-section 1 of Section 5 of the Act <mark>(granting a right of appeal prospectively) is declared to be in accordance with the Constitution and to this extent, the petitions are dismissed<\/mark>,\u201d he ruled.<\/p>\n<p>Sub-section 1 of Section 5 of the Act says: \u201cAn appeal shall lie within thirty days from an order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days\u201d.<\/p>\n<p>\u201cBy a majority of 8-7 (CJP 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) sub-section (2) of Section 5 of the Act <mark>(granting a right of appeal retrospectively) is declared to be ultra vires the Constitution and to this extent the petitions are allowed<\/mark>,\u201d the verdict added.<\/p>\n<p>Sub-section (2) of Section 5 of the practice and procedure law says: \u201cThe right of appeal under sub-section (1) shall also be available to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of this Act.\u201d<\/p>\n<figure class=\"media  w-full  w-full  media--stretch  media--embed  \">\n<p><div class=\"ast-oembed-container \" style=\"height: 100%;\"><iframe title=\"\ud83d\udd34 LIVE | SC Verdict: Bill Limiting CJP Powers \u201cSustained\u201d With 10-5 Majority  | \ud835\udc03\ud835\udc1a\ud835\udc30\ud835\udc27 \ud835\udc0d\ud835\udc1e\ud835\udc30\ud835\udc2c \ud835\udc04\ud835\udc27\ud835\udc20\ud835\udc25\ud835\udc22\ud835\udc2c\ud835\udc21\" width=\"500\" height=\"281\" src=\"https:\/\/www.youtube.com\/embed\/E2D1tInyNVY?feature=oembed\" frameborder=\"0\" allow=\"accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share\" referrerpolicy=\"strict-origin-when-cross-origin\" allowfullscreen><\/iframe><\/div>\n<\/p>\n<\/figure>\n<p>The SC (Practice &amp; Procedure) Act, 2023, which was <a href=\"https:\/\/www.dawn.com\/news\/1747063\">passed by Parliament in April<\/a>, states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP. Additionally, it adds to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases.<\/p>\n<p>The law was seen by the petitioners as an attempt by the government to curtail the chief justice\u2019s powers.<\/p>\n<p>In April, the Supreme Court, then led by former chief justice Umar Ata Bandial, <a href=\"https:\/\/www.dawn.com\/news\/1747432\/in-pre-emptive-strike-sc-renders-bill-clipping-cjps-powers-ineffective-when-it-becomes-law\">barred the government<\/a> from implementing the law until the petitions challenging it were decided. The decision was taken by an eight-member bench consisting ex-CJP Bandial, Justice Ahsan, Justice Akhtar, Justice Sayyed Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha, Justice Syed Hasan Azhar Rizvi and Justice Waheed.<\/p>\n<p>A day after he was sworn in, on September 19, incumbent CJP Qazi Faez Isa resumed hearing the petitions with a full court and <a href=\"https:\/\/www.dawn.com\/news\/1776703\/sc-goes-live-as-full-court-tackles-controversial-law\">ordered<\/a> live-streaming of the entire proceedings.<\/p>\n<p>Today\u2019s judgment comes after five proceedings were conducted on the matter. At the <a href=\"https:\/\/www.dawn.com\/news\/1780450\/cjp-loses-his-train-of-thought-amid-cross-talk\">previous hearing<\/a>, an exchange between judges and counsel hinted at the disquiet among judges over the court\u2019s workings.<\/p>\n<h2><a id=\"important-step-to-protect-courts-independence\" href=\"#important-step-to-protect-courts-independence\" class=\"heading-permalink\" aria-hidden=\"true\" title=\"Permalink\"\/>\u2018Important step to protect court\u2019s independence\u2019<\/h2>\n<p>Reacting to the judgment, lawyer and columnist Salaar Khan recalled that many people had called the practice and procedure law a \u201cperson-specific law\u201d enacted to provide an appeal to former prime minister Nawaz Sharif.<\/p>\n<p>\u201cThey may now seek some solace in knowing that the only part of the law that hasn\u2019t been upheld is the right of appeal in cases already decided,\u201d he said in a post on X.<\/p>\n<p>Lawyer Hassan A. Niazi said it takes \u201cincredible integrity and selflessness to limit your own power\u201d.<\/p>\n<p>\u201cThe Chief Justice has taken the right decision for the court, the Constitution, and the rule of law,\u201d he said, adding that the verdict was an \u201cimportant step\u201d to protect the court\u2019s independence from \u201cexternal and internal influence\u201d.<\/p>\n<p>Speaking to the media, Barrister Ali Zafar said the Supreme Court (Practice &amp; Procedure) Act of 2023 will not be applied retrospectively.<\/p>\n<p>According to him, former prime minister Nawaz Sharif and Jahangir Tareen will not have the right to file appeals. \u201cAs per the Supreme Court\u2019s ruling, appeals against the Panama Papers and other cases are no longer permissible, as the previous law had allowed appeals against past verdicts.\u201d<\/p>\n<p>Zafar stated that the recent verdict clarified several key points. He noted, \u201cThe verdict made a few points quite clearer, including that the Constitution is supreme, and it is the top court\u2019s job to interpret the Constitution.\u201d<\/p>\n<p>He also pointed out that the verdict reflected that the top court was bound to implement the law if the Parliament enacted a law within the legal framework, even if the law pertained to the practice and procedures of the SC.<\/p>\n<h2><a id=\"the-hearing\" href=\"#the-hearing\" class=\"heading-permalink\" aria-hidden=\"true\" title=\"Permalink\"\/>The hearing<\/h2>\n<p>At the outset of the hearing today, Attorney General for Pakistan (AGP) Mansoor Usman Awan presented his submissions. He said his arguments would be based on the government\u2019s written response submitted in court.<\/p>\n<p>\u201cYou are saying you not repeat the arguments but will highlight them,\u201d the CJP said here, to which Awan stated that he would talk about the independence of the judiciary and Article 191 of the Constitution.<\/p>\n<p>Article 191 (Rules of procedure) states: \u201cSubject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.\u201d<\/p>\n<p>The AGP added that three questions were raised during the proceedings on the matter in discussion and he would respond to them. He said Article 191 did not take away the Parliament\u2019s right to legislate.<\/p>\n<p>\u201cParliament has given the judiciary its independence but has also not limited its right to legislate,\u201d Awan said.<\/p>\n<p>Here, Justice Akhtar recalled that before 1973, changes to SC rules were conditional to the permission of the governor general or president.<\/p>\n<p>For his part, the AGP said there were no restrictions on the Parliament amending rules under Article 191.<\/p>\n<p>\u201cAre you saying that there are no restrictions on the Parliament amending rules formulated by the SC?\u201d Justice Ahsan asked. \u201cSo are there no restrictions on SC amending laws created by the Parliament?\u201d<\/p>\n<p>Awan replied that the Parliament was the institution that created laws. He further stated that if the number of pending cases in the apex court crossed 70,000 a need may arise to create another law.<\/p>\n<p>Meanwhile, Justice Naqvi asked if the AGP had brought the record of the number of parliamentarians who had debated on the practice and procedure law. \u201cIt is present on the website,\u201d Awan replied.<\/p>\n<p>At one point, CJP Isa said institutions should be \u201cpitted against each other\u201d and there should be mutual respect among them.<\/p>\n<p>\u201cIn my opinion, the Parliament respected the SC. If it wanted, the Parliament could have taken another step which it did not. I believe that step was not taken because the Parliament trusts us,\u201d he said.<\/p>\n<p>The top judge further stated that the scope of the matter should not be widened. \u201cParliament is not our enemy neither does it consider us enemies. Both can be run simultaneously,\u201d he said.<\/p>\n<p>\u201cThe world is moving forward while we are going backwards. There are a number of challenges that we are seeing, including climate change,\u201d Justice Isa added and cited the phrase \u201clive and let live\u201d.<\/p>\n<p>\u201cThe world moves forward together, not antagonistically,\u201d the apex judge said.<\/p>\n<p>He then instructed the AGP to focus on the attack on the Constitution.<\/p>\n<p>Resuming his submissions, Awan said the Constitution did not recognise any convention but didn\u2019t recognise customs or usages having the force of law.<\/p>\n<p>However, Justice Akhtar stressed that the Constitution has to be read on the premise that there have to be constitutional conventions.<\/p>\n<p>For his part, the AGP said the Constitution never acknowledged the CJP as the \u201cmaster of the roster\u201d. Here, Justice Isa interjected and asked about the genesis of the term and whether it was even used today. Awan replied that the term came from the colonial British times.<\/p>\n<p>The CJP again questioned if such a term existed in Islamic history and criticised the dependence on \u201ccolonial masters\u201d.<\/p>\n<p>At one point, Justice Akhtar said that the master of the roster committee, under the new law, would do the same work that the CJP used to do. If you don\u2019t want to give the power to one judge, why give it to three judges, he asked.<\/p>\n<p>\u201cIf any CJP has not given the power to full court in the past, then you do it,\u201d the judge remarked.<\/p>\n<p>On the other hand, Justice Ahsan said the foremost question was whether the Parliament was competent and the second was that if the Parliament was competent, some provision of the law inconsistent with the Constitution could be struck down.<\/p>\n<p>\u201cYou would have to take us to each provision and justify that it is not in conflict with any provision of the Constitution,\u201d he added, asking the AGP to proceed.<\/p>\n<p>Meanwhile, the CJP said that it wasn\u2019t acceptable that the Parliament was restricted while the SC kept taking decisions, recalling that orders have been passed in the past where judges were restrained from being a part of benches.<\/p>\n<p>Justice Isa expressed displeasure that this was, however, not being discussed by anyone from the petitioners\u2019 side.<\/p>\n<p>\u201cThe time has come for the country to move forward. The way courts are used, as they say, \u2018misuse of due process\u2019. Guns are being fired from our shoulders and martial laws have been endorsed,\u201d the top judge said.<\/p>\n<p>Institutions, Justice Isa continued, were not perfect but they should be developed and respected. \u201cBut anyone who talks about betterment, they are reprimanded,\u201d he said.<\/p>\n<p>\u201cKeep a balanced approach, you are the Attorney General for Pakistan. At the moment, you are an officer of the court, not just representing the government\u2019s approach, because there is no government in the sense that there is a caretaker government and a neutral set-up now,\u201d the CJP told Awan.<\/p>\n<p>The judge added that there was a difference between the government and Parliament.<\/p>\n<p>During the hearing, the AGP revealed the details of judgments taken under Article 184(3) and their outcomes. He said Steel Mills had record losses of Rs206 billion since June 2022.<\/p>\n<p>\u201cAre you trying to say that all this happened because of SC\u2019s action?\u201d CJP Isa asked while Justice Naqvi stated a chargesheet should not be made against the apex court.<\/p>\n<p>\u201cWhy are we so scared of listening to the truth?\u201d the top judge said.<\/p>\n<p>On the other hand, Justice Afridi asked what the AGP wanted from the chargesheet. \u201cDo you want us to call the practice and procedure law constitutional through the doctrine of necessity?\u201d<\/p>\n<p>Here, the CJP once again questioned, \u201cWhy are we scared of criticism?\u201d<\/p>\n<p>Separately, Justice Akhtar reprimanded the AGP and said: \u201cThis is not a debate society neither are we sitting here to listen to your lectures.\u201d<\/p>\n<p>Meanwhile, the CJP said calling legislation by the Parliament a \u201cchargesheet\u201d would not be correct. He added that he spent most of his life as a lawyer and counsels, irrespective of whether the judges like it or not, continue their arguments.<\/p>\n<p>After the AGP concluded his arguments, Lawyer Hassan Irfan, representing petitioner Mudassar Hassan Jura, and Supreme Court Bar Association (SCBA) President Abid S. Zuberi also completed their submissions.<\/p>\n<h2><a id=\"law-limiting-cjps-powers\" href=\"#law-limiting-cjps-powers\" class=\"heading-permalink\" aria-hidden=\"true\" title=\"Permalink\"\/>Law limiting CJP\u2019s powers<\/h2>\n<p>The previous government of PDM had enacted the Supreme Court (Practice and Procedure) Bill 2023, aimed at limiting the powers of the top judge. The <a href=\"https:\/\/www.dawn.com\/news\/1747063\">legislation<\/a> deprives the office of the CJP of powers to take suo motu notice in an individual capacity.<\/p>\n<p>The law states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP. Additionally, it adds to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases.<\/p>\n<p>On April 13, an eight-judge SC bench headed by former CJP Bandial had <a href=\"https:\/\/www.dawn.com\/news\/1747432\">suspended<\/a> the enforcement of the Supreme Court (Practice &amp; Procedure) Act, 2023.<\/p>\n<p>When the law was suspended, Justice Bandial had observed that the court had great respect for the Parliament but it also had to examine if any constitutional deviation, violation or transgression had taken place while enacting the legislation.<\/p>\n<p>The petitioners in the case had pleaded before the apex court that the concept, preparation, endorsement and passing of the law was an act tainted with mala fide. Therefore, the bill should be struck down after declaring it to be without lawful authority and of no legal effect, they contended.<\/p>\n<p>Moreover, they said the federal government could not frame any law that seeks to interfere or regulate the functioning of the apex court or the powers exercised by it or its judges including CJP, under the Constitution.<\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"<p>The Supreme Court, in a full court session on Wednesday, ruled that the SC (Practice &amp; Procedure) Act, 2023 \u2014 which requires a committee of senior judges to form benches for constitutional matters and suo motu notices \u2014 was \u201csustained as being constitutional\u201d and rejected petitions against the law in a majority verdict. Key takeaways [&hellip;]<\/p>\n","protected":false},"author":2,"featured_media":13190,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"fifu_image_url":"https:\/\/i.dawn.com\/large\/2023\/10\/11122832473f173.png?r=195138","fifu_image_alt":"","footnotes":""},"categories":[13],"tags":[],"class_list":["post-13189","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-top-news"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts\/13189","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/comments?post=13189"}],"version-history":[{"count":0,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts\/13189\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/media\/13190"}],"wp:attachment":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/media?parent=13189"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/categories?post=13189"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/tags?post=13189"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}