ISLAMABAD: The Supreme Court questioned why everyone surrendered when the martial laws were imposed, but agitated when the Parliament passed laws and challenged them in courts.
A Full Court, headed by Chief Justice Qazi Faez Isa, on Tuesday, heard the petitions against the Supreme Court (Practice and Procedure) Act, 2023. The proceeding was telecast live on Pakistan Television Corporation.
The chief justice said; “When the martial laws were imposed in the country then everyone surrendered, but bring the laws, passed by the Parliament in the courts.”
He said if you could see there are many whose portraits hang on the walls (of the court), who had validated martial laws. He while addressing Advocate Hassan Irfan, who argued on behalf of a SC lawyer, he said: “You are not against martial law but against the Parliament’s powers.”
Justice Faez said the Parliament’s stand is that it is not usurping the rights of the Supreme Court, but enhancing its jurisdiction. Once the apex court passed a judgment under Article 184 (3) of the constitution then there is no appeal against it, adding the Parliament has provided a forum to review judgments passed under the Article.
He said the past the apex court under Article 184 (3) had decided cases pertaining to elections and sugar price, which was not its mandate. The CJP noted that the Parliament says the SC’s decision under Article 184 (3) is final, adding it is not determining Court’s limits and provided an appeal. He questioned the counsel how this law affects him or other petitioners, adding the law (Practice and Procedure Act) may affect the chief justice’s power, but not the petitioners.
Justice Faez asked the counsel how many times the Supreme Court has endorsed martial law? “Do you want to open the door for another martial law,” he further asked.
Justice Athar Minallah questioned if this law (Act) ensures Access to Justice and the internal independence of the Court? He further asked whether the Parliament is not competent to legislate. Hassan Irfan contended that they (the PDM government) had amended the constitution in the garb of this law. Justice Minallah then said what makes it different whether Access to Justice is provided through legislation or amending the constitution.
Justice Ijaz said the basic question is not that there should be an appeal or no appeal, but the Court has to see which entity providing the appeal against the SC’s judgment delivered under Article 184 (3). He said when the constitution has not provided an appeal against the judgment rendered under Article 184(3) then how it could be provided through an ordinary law. Justice Shahid Waheed inquired whether the ill intention of the Parliament could be condoned because it is good law.
The chief justice said in Zafar Ali Shah’s case, the apex court had given power to an individual to amend the constitution. Last time, the apex court passed a judgment in Reko Diq, due to that, Pakistan was asked to pay $6 billion to the mining company.
However, in advisory jurisdiction, the matter was resolved. He further said that in Dosso, Maulvi TameezUd Din and Nusrat Bhutto cases, the court empowered an individual to play with the destiny of the country and make a mockery of the constitution. “Now we will not allow any dictator to make mockery of the constitution and we should respect the Parliament.”
Justice Faez told that a president of a lawyers’ body had complained to him that so and so case had not been fixed. “Let Pakistan be run in accordance with the constitution and the law, as the individuals, whether it was military dictator or anyone else, have destroyed Pakistan as they did not believe in making decisions in consultation.” He inquired from the counsel what problem he would have if the chief justice decided about fixing cases and the bench-constitution with consultation. He also advised the counsel to broaden his vision.
Justice Munib Akhtar remarked that for the first time, martial law was endorsed in Dosso case. However, later on, in Asma Jillani’s case it corrected its judgement. He said if the Court wanted to correct its path then it could do it.
The chief justice said that the constitution was trampled many times. At one time, the Supreme Court validated the martial law, but corrected its judgements on other occasions. “This means it depends on the Court mood to like or dislike certain acts. In Maulvi TameezUd Din and Dosso cases, it validated the martial law, but after some time, in the Asma Jillani case declared it bad. Is the Supreme Court “King of the ring”?
Justice Minallah stated that the chief justice’s power to pick and choose regarding fixing the case is not right. Justice Faez questioned if three senior judges of the apex court with consultation decide about fixing the cases and constitution of benches then how it affects the petitioners.
Pakistan Tehreek-e-Insaf (PTI) lawyer Uzair Bhandari argued that the Supreme Court can legislate if it is expressly and implicitly given in the Federal Legislative List. Justice Minallah asked if he wanted to say that the Parliament is bereft of making laws regarding Access to Justice or Fundamental Rights.
The chief justice then said if the Parliament can provide appeal against the sentence awarded under Article 6 of the constitution, and an appeal against the punishment under Article 204 then why not it could provide an appeal against the judgment passed in Article 184 (3).
He asked the counsel was it not better for his client to raise these issues before the Parliament, instead of bringing them before the apex court. “You (the PTI) don’t perform their duties in the Parliament but want to burden the Supreme Court.”
The CJP asked Bhandari are you are suggesting that the CJP becomes omnipotent and if one day his mood is not good he does not allow lawyers argue to their case. “We all are human beings and make mistakes,” he added. He said Article 184 (3) had been misused; therefore, the Parliament has provided the right of appeal. “We are pointing fingers at the whole Parliament, but no one is talking about the power of the omnipotent chief justice.”
Justice Faez asked the counsel what would be the first step of the PTI if it again goes to the Parliament, will it repeal the law? Bhandari replied that he would advise his client to make a good law.
Copyright Business Recorder, 2023
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