Justice Isa questions how the Constitution and the law are dependent on the sweet will of CJP n It is not the job of CJP to constitute bench and fix cases n Justice Mansoor says ’We should not disrespect the Parliament’.

ISLAMABAD   -  Chief Justice of Pakistan Justice Qazi Faez Isa Monday questioned that how the Constitution and the law are dependent on the sweet will of the chief justice of Pakistan.

“The parliament’s intentions were good,” said Justice Isa said as the top court resumed hearing pleas challenging the Supreme Court (Practice & Procedure) Act 2023.

He warned that this message should not go out of this courtroom that the size of the Chief Justice foot is bigger than the Constitution and the law. He said that this is a wrong notation that the next chief justice would do whatever he likes. He said that the Chief Justice is also under the Constitution and it should not be thought that the Constitution is subservient to the whims of the chief justice. He added that he should also follow the Constitution and the law. “I am servant to the Constitution and the law up to the Allah Almighty,” Justice Faez said that while heading a Full Court, which heard the petitions against the Supreme Court (Practice and Procedure) Act, 2023. The proceeding was live telecast on Pakistan Television Corporation.

During the hearing, Justice Mansoor Ali Shah said that there is no concept of master of roster in the world. “It is time to wake up, as in the developed countries this concept is non-available.” “It is the collegial system that works and there is no Master of the Roster,” he added.

Earlier, Justice Munib Akhtar said that according to the judgment of the apex court, chief justice is the Master of Roster. The Chief Justice remarked that as per the existing rules the chief justice is the Master of Roster, adding that it is not the job of the Chief Justice to constitute bench and fix cases. 

He said that he assigned this task to the Registrar to fix the cases. Justice Mansoor said: “We should not disrespect the Parliament, and it is not right that one chief justice says one thing and the other chief justice says that I will perform my functions according his own will. The question of framework of separation of power bound each organ to remain within its limits. He said there is book ‘Court on Trial’. At this, Justice Munib said he has also read that book, adding that if one man (CJP) misuses then why not it could be by three or five judges. Advocate Zahid Ibrahim, who appeared on behalf of Pakistan Muslim League-Quaid (PML-Q) asked the bench to don’t read this Act 2023 as an encroachment on the power of the judiciary, adding that the Parliament does not seek to curtail the power of the Supreme Court.

At the outset of the hearing, 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: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Cou rt”. 

The lawyer contended that the “only authority that can make rules regulating the practice and procedure of the court is the honourable SC and not Parliament”. 

He said that “subject to the law and the Constitution” did not mean that Parliament could legislate in this regard. “If rule-making power is made subject to legislation, then the rule-making power of the SC will become functus officio,” he said. He further contended that constitutional grant of rule-making power was construed as a continuing power, “so there cannot be any limitations on that”. 

However, CJP Isa stated that under the counsel’s arguments six words of the Constitution could be deleted “as rendered meaningless”. “I am reading it like that if I accept your contentions,” Justice Isa said. 

Zuberi contended that “subject to” meant that it was restrictive in nature because a constitutional power, which was a continuing power, was being given to the SC. 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: “Until Majlis- i-Shoora makes provision by law, the Council [of Common Interest] may make its rules of procedure”. He also referred to Article 6(3) and Article 151(2). 

Justice Akhtar asked that whether subsequent legislation could “displace” rules that were lawfully and constitutionally framed by the apex court. “No, 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’s? Where will we stop?” Zuberi contended.

At one point, CJP Isa remarked, “The day we hear this case, the weeks we hear this case, our institution exceeds our disposal. The day we don’t, our disposal exceeds our execution. If you think this is a never-ending hearing, this is the last day of the hearing.” 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. 

“This is most unfair. We had asked people to file […] We have told everybody to file […] And is this an easy thing to read? Could you not have done this before?” he asked Zuberi.

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. “Does Article 191 confer jurisdiction or does it confer power?” asked Justice Ahsan. “I would say it confers power,” Zuberi said. He said that the most important word used in the provision was “regulate”. “Article 191 is not a jurisdiction conferring article it is a power conferring article. And there is a distinction between jurisdiction and power,” Justice Ahsan remarked. 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. He said that the words “subject to” meant that it was not an enabling provision but rather a restrictive provision. “If you argue in context of Pakistan and why presumably the legislature enacted this law […] 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,” Justice Isa told the lawyer. 

He said that the SCBA president had not brought a petition before the court and asked what his “anxiety” was with regards to the law. CJP Isa then asked about how Article 184(3) had been used. “Human rights cell, is it mentioned in any rule or law? Put Parliament aside. Is there any mention in our own rules?” 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. “But the other powers used under Article184(3) were those mentioned in the rules or not?” he asked. Justice Isa said that Article 191 did not state that the chief justice could make the rules or a “human rights cell”. “Before the world raises a finger, I raise a finger on myself.