Legal experts at odds with ordinance

ISLAMABAD:

The PML-N led government has further empowered Chief Justice of Pakistan Qazi Faez Isa to form benches and fix high profile cases by nominating judge of his choice through amendments to the Supreme Court Practice and Procedure Act 2023.

Soon after the promulgation of the ordinance on amendments in the Practice and Procedure Act 2023, CJP Isa reconstituted a committee wherein Justice Aminuddin Khan has been included as a third member by ousting Justice Munib Akhtar. Justice Aminuddin Khan is the fifth most senior judge of the SC.

Interestingly, Justice Yahya Afridi, who is the fourth most senior, has not been included in the committee. However, senior puisne judge Justice Syed Mansoor Ali Shah will continue to be a member of the committee.

Now a debate has begun over why the government wants to strengthen CJP Isa's position just before his retirement.

The relations between Justice Munib Akhtar and CJP Isa have been strained since the hearing of a case against a presidential reference regarding his removal.

After the retirement of former CJP Umar Ata Bandial, Ijazul Ahsan resigned while Justice Mazahar Ali Akbar Naqvi was removed.

Ex DG ISI General Faiz Hameed, who was the mastermind behind the reference against him, is being court martialed in a matter which was initiated by a bench led by CJP Isa himself.

Since the July 12 order, CJP Isa was having difficulty implementing his plan as he remained in the minority during committee meetings.

The CJP Isa wanted early hearings of PML-N's review petition against the July 12 order in the reserved seats case.

Likewise, he wanted to fix the Arshad Sharif murder case before a bench led by Justice Shah, but his views were not endorsed by the majority of judges.

Two majority judges had formed a larger bench, led by Justice Jamal Khan Mandokhail, to hear the matter.

Interestingly CJP Isa also wanted the early hearing of a review petition against an SC judgement on the interpretation of Article 63A.

During the committee meeting in July, CJP Isa had noted in his dissenting note that 26 months have passed since the decision on the interpretation of Article 63 A of the Constitution.

He observed that in this case, the same should be fixed within ten days before a bench to which he added Justice Syed Mansoor Ali Shah, Justice Yahya Afridi and Justice Aminuddin Khan. Justice Munib Akhtar and Justice Jamal Khan Mandokhail were already part of the bench.

Now it is unclear whether the committee will change the bench which was suggested by CJP Isa in his note. This case is also included in the upcoming committee meeting which was scheduled for Thursday, but CJP Isa was unavailable.

Since Justice Shah was not available on Friday, it is expected that this meeting will be held on Monday.

Advocate Salaar Khan says that by removing Justice Munib Akhtar from the committee, the CJP has struck two of his own 'principles' with one stroke.

"He's validated needless legislation through ordinances while forgetting all he wrote about curtailing the powers of the CJ." he adds.

He said CJP Isa has always remained critical over legislation through the promulgation of ordinances.

Former additional attorney general Waqar Rana states that this new ordinance amending the Practice & Procedure Act, 2021, practically makes CJP master of the roster.

He added the move is patently unconstitutional as the temporary legislative power vested in the executive has been exercised with apparent malafides.

"The principle that no malice can be attributed to the legislature may not be applicable here as, strictly speaking, the said exceptional power is exercised by the executive.

On the basis of DC Wadhwa (1987) and AK Roy (1981) cases referred to PMDC Ordinance (2018), case courts may examine its vires. Haste and allied factors including the urgent appointment of a judge who was the fifth most senior, and skipping Justice Yahya Afridi, may be seen by some as a less than fair exercise of power by CJP ," Rana says.

Another former top law officer states that during worst days of martial law, judges were targeted. "However, today, I see an existential threat to the institution of the judiciary," the legal expert states.

He suggests that SC judges should immediately call a full court meeting. "If CJP Isa does not convene it, the majority should request the seniormost judge to call a full Court meeting immediately. This is the first step," he adds.

Advocate Sameer Khosa says that there is a lot to say about the ordinance as it exposes the fact that the Practice and Procedure Act 2023 was nothing but a device to clip the powers of the then chief justice. "Now, when the same act becomes a hindrance, it has been chosen to enhance the powers of a chief justice preferred by the government."

He adds that an ordinance can only be promulgated due to urgent circumstances when parliament cannot be called. "What was the urgency in giving this power to the CJ, given that the committee was functioning?" he asks.

Khosa continues that the CJP has given no reason for skipping the judges at numbers three and four in terms of seniority when nominating the committee.

"Once [upon a time], this CJP used to criticise the use of arbitrary powers by the top judge of the apex court. If it is true that the practice and procedure committee meeting did not take place yesterday, and then for the ordinance to come the very next day, and for the CJP to appoint the fifth most senior judge on the very same day, raises serious questions. At the very least, it shows that the CJP's tall claims about promoting democracy and erasing discretion in the SC are not true," he asserts.

Explaining the amendments in the Supreme Court Practice and Procedure Act 2023, Hafiz Ehsaan Ahmad says that the current changes, through a presidential ordinance issued under Article 89 of the Constitution, will have a significant legal impact on the makeup of the Supreme Court benches, the prior consideration of suo moto cases, and the requirement that cases be heard "first-in, first-out".

According to the legal expert, the amendment made in Section 2, Sub-clause 1 has now redefined the committee's position for the composition of benches and hearing of cases in the Supreme Court. "Now, the third member of the committee will be included by the chief justice of Pakistan, and resultantly this has strengthened his office."

Hafiz Ehsaan Ahmad states that the alteration to Section 3 of the Court (Practice and Procedure) Act, 2024 will be a crucial shift as it will now be required for the Supreme Court to provide a thorough justification for any suo motu action before conducting it. Previously, this was an optional step.

According to him, the introduction of Sections 7A will ensure transparency and predictability in court proceedings, and this is perhaps the most transformative aspect where case fixation will be predictable and systematic, reducing the risk of delays or preferential scheduling of cases.