In a first, top court’s proceedings go live on TV

Practice and Procedure Act case hearing held for several hours; CJP to form three-member committee

ISLAMABAD:

In an unprecedented move on Monday, the top court authorized the live broadcasting of its proceedings, which extended from morning until late evening. This captivating spectacle held viewers rapt, generating unprecedented interest in judicial proceedings and providing invaluable insights into court matters.

The development came as the newly sworn-in Chief Justice of Pakistan (CJP) Qazi Faez Isa took up the petitions challenging the Supreme Court (Practice and Procedure) Act 2023, forming a full court 15-member bench for the purpose.

Headed by CJP Isa, the bench comprised 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.

After hearing Attorney General for Pakistan (AGP) Mansoor Usman Awan and two lawyers, the full court ordered the respondents to submit their written replies by September 25, and adjourned the hearing of the case till October 3.
The top judge maintained that he would constitute a three-member committee, including himself, in consultation with two senior most judges to decide the formation of top court benches.

The Practice and Procedure Act 2023 has several objectives, including granting the authority to take suo motu notices and form apex court benches on matters of public importance to a three-member committee, consisting of senior judges, including the chief justice. Earlier, it was the sole authority of the chief justice.

A full court meeting, before the hearing, presided over by CJP Isa granted approval to airing the proceedings of the case live on TV.

The broadcast was shown uninterrupted by all major Pakistani channels.

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In April, an eight-member larger bench, headed by then chief justice Umar Ata Bandial had suspended the Practice and Procedure Act, even before its enactment. Since then, some apex court judges had been saying that the case should be decided at the earliest, because of wide-ranging impact.

A bill in this regard was passed by the National Assembly on March 29 and by the Senate on March 30 after which it was sent to President Dr Arif Alvi for his assent. However, Alvi refused to approve the bill and on April 8, he sent it back to parliament for reconsideration.

A joint session of parliament approved the bill as it was on April 10 and sent it back to the president for his approval. As per the law, any bill sent to the president for a second time is enacted after 10 days even if the president does not sign it into law.

However, on April 13 – a week before its automatic enactment on April 20 – the apex court stayed the enactment of the law. In the meanwhile, the National Assembly issued the notification of the bill becoming the law in the Gazette of Pakistan.

During the extensive proceedings that spanned from morning to evening on Monday, the Chief Justice took note of 150 cases filed in a single day. He brought to mind prominent cases, such as Steel Mills, Karkey, and Reko Diq, which had been heard under Article 184. Notably, he acknowledged that Clause 3 of this Article had drawn significant public criticism.

Article 184(3) of the Pakistan Constitution empowers the Supreme Court to take suo-motu action or consider applications from individuals, provided the court deems that a violation of fundamental rights, with implications for public welfare, has occurred.

Chief Justice Isa, during the hearing, expressed a poignant reflection, remarking that they were conducting proceedings in air-conditioned chambers while acknowledging the unfortunate deaths occurring in prisons. He lamented the irony that their salaries were funded by the meager resources of ordinary citizens.

He recalled that the courts had previously sanctioned martial law and emphasized the importance of acknowledging past mistakes.

The chief justice made an effort to conclude the Practice and Procedure case during the hearing but was unable to do so. He assured that a written order summarizing the day's proceedings would be issued.

In dictating his order, the Chief Justice stated, "Considering the challenge posed to the Supreme Court (Practice and Procedure) Act 2023 and its pending adjudication, we will engage in consultations with two senior colleagues regarding the composition of benches." He also noted that senior puisne judges, Justice Sardar Tariq Masood and Justice Ijazul Ahsan, concurred with his perspective.

The CJP emphasized his commitment to following the Constitution and the law rather than relying solely on judicial statements.

He said the observations that were being given at the apex court were statements, adding that it was the authority of the court to regulate its power.

He asked which fundamental right of people was affected by the Act, noting that 57,000 cases were to be decided.
Petitioner’s lawyer Khawaja Tariq Rahim started reading the law and said, “Framing of these rules, under Article 191, is the prerogative of the Supreme Court. When they framed the 1980 rules, the entire court sat together and together they framed the rules.”

He added that the "intrusion of the parliament" into the affairs of the top court prompted him to file the petition as he felt "every institution must remain in its domain".

The top judge said that rules of 1980 had no value in his eyes.

He said that every time a dictator imposed martial law in the country he received 98.6 per cent votes, and that they could not hold a referendum to test the law. He asked the lawyer to challenge the Act in the high court, saying that they had come to assist the apex court rather than the top court assisting them.

Read Justice Isa makes history on his first day

The top judge said that he had disassociated himself from the observations that were being presented at the apex court, adding that these were not observations but statements.

He said that they were paid by people to deliver justice, and questioned whether the $6.5 billion verdict on Reko Diq was a good one.

CJP Isa said that the decision to hang former premier Zulfikar Ali Bhutto was a split judgment. During the hearing, counsel Rahim stressed the need to amend the Constitution to grant right of appeal.

Justice Ijazul Ahsan inquired how the right of appeal could be given without a constitutional amendment. He said under Article 185, the right to appeal had been withdrawn.

Can the right of appeal be given by common law while the Constitution does not provide for appeal? he asked.
Justice Yahya Afridi noted that the Rules of 1980 to regulate the Supreme Court did not meet the criteria of Article 191.
Justice Munib Akhtar asked whether the parliament could return its powers to the CJP. How can the right of appeal be given by common law without amending the Constitution? he questioned.

Justice Ayesha Malik asked how would the affected party be given the right to appeal against the verdict if the three-member committee takes a decision.

Justice Athar Minallah said that an appeal can be made against the decision of the three-member committee by amending the rules.

He said that common people should also have the right to appeal against martial laws.
Justice Sardar Tariq Masood inquired that if the law is declared valid, what will happen to the decisions given under Article 184 (3).

The AGP replied that this principle cannot be applied from the past, adding that the decisions that had been taken were now past and closed transactions.

To lawyer Rahim stance of amending Constitution for giving right of appeal, Justice Munib Akhtar asked whether handing over the administrative powers of the Supreme Court to the parliament were not in conflict with the concept of separation of powers.

Justice Athar Minallah asked how regulating the powers of the chief justice was a violation of fundamental rights.
Justice Munib Akhtar questioned how the parliament could decide whether the committee should comprise a member or five members.

Can parliament devise a law to constitute a larger bench to hear family cases tomorrow? he asked.
During the hearing, Advocate Imtiaz Siddiqui requested the top court to grant him two days, saying 32 questions were asked and that he would answer them.

The court granted the lawyer the time to respond to the questions.