Justice Isa questions how constitution, law can be dependent on the ‘whims’ of CJP

ISLAMABAD: Chief Justice Qazi Faez Isa questioned how the constitution and the law could depend on the whims of the Chief Justice of Pakistan.

He warned that this message should not go out from this courtroom that the size of the chief justice’s foot is bigger than the constitution and the law. He said “this is a wrong notion that the next chief justice could decide whatever he likes.” He said the chief justice was also under the constitution, and it should not be thought that the constitution was subservient to the whims of the chief justice, adding he should also follow the constitution and the law.

“I am servant to the constitution and to Allah Almighty,” Justice Faez said while heading a Full Court, which heard the petitions against the Supreme Court (Practice and Procedure) Act, 2023. The proceeding was telecast live on the Pakistan Television Corporation.

Justice Munib Akhtar said according to the judgment of the apex court, chief justice is the Master of the Roster. The chief justice remarked as per the existing rules, the chief justice is the Master of Roster, adding it is not the job of the chief justice to constitute benches and fix cases. The CJP said he has assigned this task to the registrar.

Justice Mansoor Ali Shah said there is no concept of the master of the roster in the world. “It is time to wake up, as in the developed countries this concept is no more.” “It is the collegial system that works and there is no Master of the Roster,” he added.

Justice Mansoor said: “We should not disrespect the Parliament, and it is not right that one chief justice says one thing and another chief justice says that I will perform my functions according to his own will.” The framework of separation of power bound each organ of the State to perform their function within their limits.

Justice Mansoor remarked what is this syndrome of opening the door. “Why there is fear that if the Act is accepted then it will open the door.” He said “if something comes tomorrow which I consider illegal then I shall strike it down.”

Justice Ijazul Ahsan noted that the Constitution had given a scheme regarding the separation of powers. “If we open the door for the parliament to interfere in every matter related to the SC then there is no end to it. There will be good or bad legislation in the future,” he added.

Commenting on the Act in question, Justice Akhtar asked whether this was an indirect constitutional amendment. “We should keep in mind the history of the country,” observed the CJP. “Let’s not crumble the parliament,” he said.

Advocate Zahid Ibrahim, who appeared on behalf of Pakistan Muslim League-Quaid (PML-Q), asked the bench not to read this Act 2023 as an encroachment on the power of the judiciary, adding the Parliament does not seek to curtail the power of the Supreme Court.

At the outset of the hearing, SCBA President Abid Zuberi said that Article 175(2) and Article 191 had been quoted in the Act. He read out Article 191 which states: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.

He said that how Article 184(3) had been used was a “reality of Pakistan”. He told the lawyer to either argue that it had been used correctly or to say it was not and then give a remedy.

“If a mistake has been made, then whose responsibility is it to find a remedy? The biggest responsibility is of this court. After that maybe Parliament. If we have made a mistake, then we should rectify it. If Parliament has made a mistake, then it should rectify it. If we don’t correct our mistake, then can the Parliament?” Justice Isa said, remarking the counsel was overlooking whatever had happened in Pakistan.

The CJP remarked that the SCBA president was representing a particular party, to which, Zuberi said he was not. The lawyer stated that he was appearing on behalf of the bar association.

“So tell us the stance of the SCBA. The way in which Article 184(3) was being used, was it correct? […] If we strike down this law, so will it be correct if I keep using [Article 184(3)] in the same way as before?” Justice Isa asked.

Zuberi said that Article 184(3) was used incorrectly in the past and several questions had been raised about it. He said whether it was used correctly or incorrectly, it had to be examined who had the competence or jurisdiction to rectify it.

Justice Minallah asked whether Parliament, which had the jurisdiction to enlarge and supplement the SC’s powers, was “bereft of jurisdiction” if fundamental rights were being violated.

Justice Ahsan observed that he had stated during the first hearing, that the matter at hand did not concern whether it was a “good or a bad” law. “It is a question of competence,” he said.

Zuberi said that the court had to see whether Parliament had the competence to make the Act. He said that if the court was violating any rules or the Constitution, then the case should be brought before the SC. The case was adjourned until today (Tuesday).

Copyright Business Recorder, 2023