Supreme Court adjourns Practice and Procedure Act 2023 hearing until October 3

The Supreme Court of Pakistan (SC) adjourned the hearing on Monday in a case challenging the Supreme Court (Practice and Procedure) Act 2023 until October 3, Aaj News reported.

The court directed the parties’ lawyers to submit their written arguments by September 25.

The Chief Justice made a point in today’s proceedings that the Practice and Procedure Act 2023, which was passed by parliament, does not take away the chief judge’s authority by giving it to a three-person committee.

Earlier in the day, a 15-member bench heard a set of challenges to the Supreme Court (Practice and Procedure) Act 2023. The hearing’s proceedings were aired live for the first time.

Ahead of the hearing today, the Attorney General of Pakistan (AGP) Mansoor Usman Awan submitted the government’s response in the matter. The response requested the court to reject the petitions against the Supreme Court Practice and Procedure Act.

A 15-member full court bench headed by Justice Qazi Faez Isa and comprising 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 heard the case.

During the hearing, CJP Isa said arguments in the case will begin afresh because a new bench has been formed.

Addressing the lawyers, Justice Isa said, “Appreciate that some of us have heard this matter and some of us are going to hear it for the first time.”

Advocate Khawaja Tariq Rahim kicked off the arguments in the case. Rahim argued that his plea was brought to the court in the interest of the public. However, the CJP asked him to make arguments rooted in the constitution.

“There is a right of appeal that is provided under this law. How do you visualise that right being exercised,” Justice Ayesha asked. Justice Isa then asked Rahim to read the law out loud.

While he was presenting his arguments, a number of pertinent questions regarding the power and authority of parliament were raised. The chief justice said that the advocate should take down the questions, and respond to them later.

“You read the Act. Either you say this entire Act is ultra vires the Constitution, that’s one contention […] You don’t need to respond to every query immediately, it will make your life very difficult […] when you are done with your arguments, you can absorb the questions and respond,” Justice Isa said.

Justice Akhtar wondered if Parliament could whittle down judicial power under Article 184(3) by providing that a committee, comprising three senior judges, be formed to decide formation of benches.

Article 184(3) of the Constitution sets out the Supreme Court’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.

Justice Minallah further pointed out that since this power earlier resided solely with the CJP, an argument was raised that the outcomes of cases could be influenced by constituting benches and this eroded the independence of the judiciary.

Meanwhile, the AGP said his arguments for the rejection of the petitions centred on their failure to meet the test criteria under Article 184(3), which is that the matter must be of public importance and it must relate to the enforcement of fundamental rights.

He further said that the Act endeavoured to “democratise this institution, bring more transparency and structure the discretion”.

AGP Awan said the law dealt with issues that were important for the public, which were the litigants.

He said far as the independence of the judiciary was concerned, “no external element, which is to say that no other institution was given any role whatsoever under this Act in so far as practice and procedure of this court is concerned.

“It is all confined within this court.”

After being appointed as the 29th Chief Justice of Pakistan on Sunday, Justice Isa formed the full court to hear the petitions challenging the SC practice law.

The enforcement of the SC (Practice and Procedure) Act, 2023 had been suspended on August 11 on the order of an eight-judge apex court bench, headed by the then Chief Justice of Pakistan Umar Ata Bandial.

The bench declared the act null and void.

The Supreme Court (Review of Judgements and Orders) Bill 2023 was passed by the National Assembly on April 15 and is aimed at giving right of appeal under Article 184 of the constitution.

Earlier in the day, a full court meeting took place and the decision was made to set up cameras in courtroom number 1 and make arrangements for proceedings to be shown live via the national broadcaster.

The bill

The previous Pakistan Democratic Movement (PDM) led government had enacted the Supreme Court (Practice and Procedure) Act, 2023, in a bid to clip the chief justice’s powers to form benches and fix any case before him.

The bill was passed by the parliament earlier this year.

However, an eight-judge bench, including the former CJP Umar Ata Bandial, stayed the bill’s implementation after a set of three petitions challenging it.

The Supreme Court (Practice and Procedure) Bill, 2023, serves multiple purposes, including the delegation of suo motu notice-taking authority to a three-member committee composed of senior judges, including the chief justice.

The bill aims to ensure transparent proceedings within the apex court and safeguard the right to appeal.

The bill outlines the constitution of benches, specifying that a committee consisting of the chief justice and the two most senior judges will be responsible for constituting benches to handle cases, and decisions will be reached by majority vote.

Regarding cases invoking the apex court’s original jurisdiction under Article 184(3), the bill stipulates that they must first be presented to the aforementioned committee for consideration.

Moreover, the bill grants the committee the authority to form a bench comprising at least three judges from the Supreme Court, which may include members of the committee itself, to adjudicate on matters of significant public importance relating to the enforcement of fundamental rights.