The Supreme Court of Pakistan has initiated the hearing of several petitions challenging the Supreme Court (Practice and Procedure) Act 2023. The hearing is presided over by the newly sworn-in Chief Justice of Pakistan (CJP) Qazi Faez Isa, who has convened a full court comprising all 15 judges of the apex court. This significant hearing is being broadcast live on state television.
Before the proceedings began, the federal government requested the court to dismiss the petitions challenging the law, with Attorney General for Pakistan (AGP) Mansoor Usman Awan submitting a detailed response arguing against the admissibility of the pleas.
At the start of the hearing, CJP Isa addressed the lawyers, acknowledging that some judges had previous exposure to the case while others were encountering it for the first time. He explained that there were questions raised about whether he should be part of the bench, leading to the decision to constitute a full court.
The arguments began with Advocate Khawaja Tariq Rahim taking the podium, but there were interruptions as the judges sought clarification on various aspects of the law. Rahim expressed concerns about the Parliament’s influence on the Supreme Court’s functions and its potential impact on institutional integrity.
As the hearing progressed, various judges raised questions about the separation of powers, the role of Parliament, and the impact of the new law on judicial independence. The lawyers argued that the Act violated several articles of the Constitution, emphasizing the need to preserve the judiciary’s independence.
The judges raised concerns about the law’s potential to erode the judiciary’s independence and the fundamental rights of citizens. They questioned whether Parliament could selectively determine the composition of judicial committees and expressed the importance of safeguarding the judiciary’s internal and institutional independence.
Justice Shah provided an example from Nepal to illustrate how the new law could clarify and enhance the judiciary’s independence. Advocate Siddiqui countered by arguing that the law had eliminated certain rules.
Throughout the hearing, the judges and lawyers debated the balance between the branches of government, the doctrine of separation of powers, and the preservation of constitutional principles. CJP Isa emphasized his commitment to upholding the law and the Constitution as the Chief Justice.
AGP Awan argued that his contentions regarding the petitions’ validity were rooted in their failure to meet the criteria outlined in Article 184(3), which requires that a matter must be of public importance and relate to the enforcement of fundamental rights.
Concerning the matter of public importance, the AGP asserted that the law in question deals with the concentration of powers in a single office. The Act’s objective is to democratize the institution of the Supreme Court, enhance transparency, and structure discretion.
Justice Ahsan noted that both parties agreed on the issue of public importance, leaving the question of whether a fundamental right had been violated as the key point.
Justice Isa emphasized that a law is considered valid unless proven otherwise, placing the burden of proof on the party challenging the law.
Case Background
In April, a larger bench led by then-Chief Justice Umar Ata Bandial suspended the Practice and Procedure Act, even before its enactment. Since then, some Supreme Court judges have emphasized the need for a prompt decision due to its wide-ranging implications.
The Supreme Court Practice and Procedure Act has various objectives, including granting the authority to take suo motu notices and form apex court benches to a three-member committee of senior judges, including the chief justice. Currently, this authority rests solely with the chief justice.
The bill was passed by the National Assembly on March 29 and the Senate on March 30. However, President Dr. Arif Alvi declined to approve it and sent it back to parliament for reconsideration on April 8.
A joint session of parliament approved the bill as is on April 10 and sent it back to the president for his approval. According to the law, any bill sent to the president for a second time would automatically become law after 10 days if not signed by the president.
However, on April 13, a week before its automatic enactment on April 20, the Supreme Court halted the law’s enactment. Meanwhile, the National Assembly issued a notification declaring the bill as law in the Gazette of Pakistan.
Justice Mansoor Ali Shah, during a recent case hearing, stressed the urgency of a decision on the Practice and Procedure Act, highlighting that if the court upheld the act’s validity, it could impact the significance of judgments issued under suo motu jurisdiction.
Legal experts believe that this case, after going through parliament, the presidency, and Courtroom No 1, is now before the entire Supreme Court. They also suggest that the judgment in this case could have implications for other legal matters, including the accountability law amendment case and the Supreme Court Review of Judgment and Orders case.