The hearing of a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023, could not be completed on Monday as the presiding judge, CJP Faez Isa, remarked that the rest of the lawyers would be heard tomorrow (Tuesday) at 11:30pm.
The law requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.
The hearing started shortly after 9:30am and like the past hearings, it was streamed live on television.
Headed by CJP Isa the bench comprises Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.
Lawyers representing the Jamaat-e-Islami and Muttahida Qaumi Movement-Pakistan would present their arguments tomorrow (Tuesday).
‘Intent of Parliament is good’
While responding to CJP Isa’s remarks, Supreme Court Bar Association President Abid Zuberi said that there should be a right of appeal under Article 184(3) but stressed the need for giving it through a constitutional amendment.
When CJP Isa asked about the SCBA president’s opinion on the use of the Article, Zuberi replied that it had been used both correctly and incorrectly.
The lawyer said that the passage of the law had an effect on the doctrine of separation of power. He said that Article 184 was the original power of the court, Article 185 was appellate power, Article 186 was advisory power and Article 188 was review power.
“If you want to give an appeal then you have to amend the Constitution,” he said.
“If somebody, albeit not even fully authorised, is doing something to help the nation, the SC, you should say strike down because they’re not following some perceived letter of the Constitution? That will be a stretch,” Justice Isa said.
Zuberi insisted that a right of appeal should be provided but reiterated that the method of doing so was not correct.
CJP Isa noted that some of the counsels while making arguments had attacked Parliament’s intent while legislating. “I am saying the intent of Parliament is good […] they said it is a person-specific law. Tell us how it is person-specific,” Justice Isa said.
CJP Isa said that the only difference between a law and a constitutional amendment was a numbers game. “It is the same persons doing the law-making, the same parliamentarians who are making the law,” Justice Isa said.
He said that Parliament should not be “crippled” when it was doing good because it did not have a two-thirds majority. The SCBA president then concluded his arguments.
Lawyer confronts CJP
A full court bench of the SC took up the Practice and Procedure bill case on Monday where the hearing took a sudden turn when a lawyer confronted Justice Qazi Faez Isa over his ‘attitude’ after the judge refused to hear him.
As Justice Isa was conversing with Attorney General Mansoor Awan, who was already on the rostrum, if he would like to argue after everyone had completed what they had to say, lawyer Imtiaz Siddiqui came up to stand next to him.
The chief justice told him that he had completed his arguments already. However, Siddiqui continued to try to speak.
“Please don’t interrupt,” the chief justice said and tried to address the attorney general again.
However, Siddiqui cut across him and said it was ‘unfair’. He added that the judge had told him on the previous hearing that he would be heard after the attorney general.
When the judge said his arguments had already been heard, the lawyer told him he was factually incorrect.
“I will not argue if you don’t want to hear me but don’t put things which are factually incorrect,” Siddiqui said.
He then mentioned that another lawyer, Khawaja Tariq Rahim, had refused to show up in court because the CJP had been ‘unkind’ to him. He added that the judge’s own attitude was not appropriate.
The chief justice simply told him not to argue on behalf of someone who was not present in court.
Siddiqui replied that Rahim was his colleague and had instructed him to mention this in court.
However, the chief justice pulled up the written order from the last hearing and started reading it aloud after specifying that the order had been signed by all judges.
“Mr Imtiaz Rashid Siddiqui … states that he does not want to add anything further and that his written submissions may be read,” Justice Isa read out.
The chief justice then told him to sit down and addressed lawyer Zayed Ibrahim, before Siddiqui cut across again, saying he wanted to ‘protest’.
“Please take your seat before I issue something,” the chief justice said sternly, which prompted Siddqui to finally move away.
Right of appeal
When some judges from the bench were questioning PML-N lawyer Salahuddin Ahmed, the CJP Isa said that there were two concerns: past and present.
“If this law is sustained, then naturally the committee will realise the provision of an appeal and will make an attempt not do nine benches plus unless it’s a matter of, I don’t want to state it because it may come to haunt me, but having realise that as far as the past is concerned that’s a different matter altogether so committee being cognizant of this law will try that in 184(3) we did not go and constitute nine plus benches or if you don’t have enough judges to hear an appeal, that’s an simple answer, if the committee wants to close its eyes, that’s another thing then you will say that fault does not lie in the law the fault lies in the committee and your lordships.”
He remarked that there could be two things that the court can sustain the bill or strike down it. “Some people may not be happy but where will be the appeal. So there is a simple answer it won’t be there. Everyone heard it, who had to heard it were also part of the bench.”
The judge advised the lawyer to not use the word “discrimination” when he spoke about the law.