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.