SC PRACTICE AND PROCEDURE ACT, 2023.

ISLAMABAD  -  Judge of Supreme Court Jus­tice Athar Minallah Tuesday said that if a law promotes the interest of the litigants then how it could be deemed as the question of independence of judiciary.

He made these remarks while a Full Court, headed by Chief Justice Faez Isa, was hearing the petitions against the Supreme Court (Practice and Procedure) Act, 2023. The proceedings were live telecast on Pakistan Television Corporation.

During the proceedings, MQM-P’s lawyer Faisal Sid­diqui argued that there is nothing in the Constitution that equates the Chief Justice with the Supreme Court. He said that the independence of the judiciary is not reduced if the CJP shares his power with the two most senior judges of the Supreme Court.

Justice Musarat Hilali ques­tioned if there is any need for improvement in the Supreme Court Rules, particularly in re­spect of Article 184(3) of the Constitution, which had shaken the foundation of Pakistan.

Justice Jamal Khan Man­dokhail inquired if the Supreme Court could enhance the mem­bers of the committee, which is proposed in the Practice and Procedure Act for constitution of the bench and the fixation of the cases. He said if tomorrow the Full Court decides that in­stead of three members in the Committee there should be five, can it do it? Faisal Siddiqui re­sponded ‘no’. Justice Faez said that making of rules for decid­ing the petitions filed under Ar­ticle 184(3) is binding on the Supreme Court if a three-judge bench in exercise of judicial power passes an order. Does such an order have constitu­tional importance and binding if the rules are not made? Can judicial order to make rules be thwarted by a press release of the SC Registrar.

The CJP observed that a lot of issues accumulated, could not be addressed because the Full Court meeting was not con­vened. He inquired from the MQM-P counsel when was the last time the Full Court hearing was held. Siddiqui responded, in 2015 a Full Court had heard the petitions against the 21st Amendment, adding that eight years ago Full Court was held.

Justice Munib Akhtar said had the Full Court made the Rules regarding the benches and the fixation of cases then it was ok, but here the Parliament became Master of Roster and made the rules for the Court through an Act of Parliament.

The Chief justice remarked that from the start of this case it was his opinion that if the CJP does not convene Full Court meeting and if the Parliament frames rules then what is harm in it? Siddiqui then argued that in the past the Supreme Court failed to perform its functions. The Chief Justice asked Siddqui not to use the word of the Su­preme Court but it was chief justice. If all the judges want that Full Court meeting is con­vened, but the chief justice says no then what they (judges) can do about it; would they seek remedy by filing a writ petition in the High Court.

Justice Jamal inquired wheth­er the judges are subservient to the Rules or they have tak­en oath under the Constitution. Justice Ijaz asked the counsel, don’t you think that the Parlia­ment has interfered in the ju­risdiction of the apex court by amending the Constitution through an ordinary legisla­tion to regulate the chief justice power. Justice Faez then asked Siddiqui why he is hesitating to say yes, the Parliament has in­tervened and why the chief jus­tice was not doing his job. He was not fixing the case of urgent nature and fixed the cases ran­domly. Should the chief justice fix the cases of some lawyers and not others, despite the fact they have filed applications for early hearing.

Justice Syed Mazhar Ali Akbar Naqvi asked if the MQM coun­sel has ever seen that a team which has three captains, won the match, adding that one cap­tain in a team seems good.

Onset of the proceeding, Fais­al Siddiqui argued that when there is no bar in the Constitu­tion to provide appeal against the order passed under Article 184(3) of the Constitution, then there is no issue if appeal is pro­vided through a law.

He cited the judgments of Jus­tice Munib Akhtar and Justice Ayesha Malik to substantiate that appeal could be provided through law. He contended that Justice Munib Akhtar as a refer­ee judge in the Sindh High Court had justified appeal against the order passed in chambers by a judge, while Justice Ayesha in the case of the Competitive Commission of Pakistan (CCP) ruled that an appeal could be filed against the order passed by CCP Appellate Tribunal be­fore the Supreme Court.

The CJ said that each institu­tion needs to conduct its own accountability and if it does not do that, then some other insti­tution will step in to carry out its job.

He said that when the chief justice doesn’t hold a Full Court meeting [regarding constitution of benches and fixing of cases] but the Parliament frames rules about it, then the chief justice says that he will also not allow any other organization to do it.

The Chief Justice remarked that it was stated who would hear appeal against the Full Court order/judgment. He said that 99% shortcomings of the past could be overcome by pro­viding an appeal, but due to one per cent deficiencies the law is called bad law.

Later, the bench adjourned hearing of the case till today for further proceedings.