Islamabad (Imran Y. CHOUDHRY) :- Former Press Secretary to the President, Former Press Minister to the Embassy of Pakistan to France, Former MD, SRBC Mr. Qamar Bashir analysis :
It was an thrilling experience to witness the live telecast of a pivotal public hearing in the wake of a significant but contentious legal development: the passage of the Supreme Court Practice and Procedure Act of 2023 by the outgoing truncated parliament. This legislation addressed several critical aspects, with particular focus on two controversial provisions. Firstly, it redistributed the power to invoke suo moto powers, transferring it from the Chief Justice alone to a committee led by the Chief Justice and comprising the two most senior judges. Secondly, it introduced the right to appeal for individuals convicted as a result of Supreme Court decisions. Previously, such decisions were considered final, and victims could only file limited review petitions, restricted to typographical errors or the emergence of new evidence that directly impacted the cases. This Act marked a departure from established jurisprudence by extending the right of appeal to convicts, a notable shift in legal precedent. Both of these provisions raised concerns about potential conflicts with the explicit provisions of the constitution and were the focal point of today’s hearing.
My heartfelt sympathies go out to the courageous lawyers who faced a barrage of intricate and challenging questions from the esteemed judges of the full bench of the Supreme Court. This proceeding conveyed a profound message: the Supreme Court was resolute in its commitment to efficiency. It made clear that it would not squander the valuable time of the court, litigants, or itself. The court was determined to expedite even the most intricate and complex cases, involving nuanced interpretations of the constitution and an array of laws and procedures, within hours or, at most, days.
The Chief Justice, with a keen eye, adeptly guided the lawyers, preventing them from meandering and keeping them focused. At one juncture, he made an impromptu remark, highlighting the tendency to follow martial law unquestioningly and how all judges, whose portraits adorn the walls of the Supreme Court, acquiesce to the chief martial administrator during such times. Conversely, he pointed out that when Parliament enacts a law aimed at facilitating access to justice, objections arise across all levels of the judiciary, regardless of position or status.
Similarly, Justice Minullah echoed the Chief Justice’s stance, repeatedly questioning how a parliamentary law designed to enhance access to justice could be construed as conflicting with the separation of powers among the three pillars of the state. This session underscored the judiciary’s resolve to streamline processes and maintain a sharp focus on matters of constitutional and legal importance.
The arguments put forth by the remaining judges were highly critical of the law, particularly its provisions pertaining to the Supreme Court’s authority to establish laws and regulations governing the court’s procedures. Their perspective emphasized that any law conflicting with the explicit provisions of the constitution necessitates a constitutional amendment, which, in turn, demands a ⅔ majority for approval.
The issue of the right of appeal was thoroughly deliberated upon during the proceedings. Justice Minullah expressed strong support for granting the right of appeal to individuals affected by suo moto decisions. Justice Ijaz, on the other hand, advocated for adhering to the constitutional provision of Article 184(3), which does not inherently provide for an appeal and, therefore, did not favor granting such a right. Chief justice argued and many other judges supreme argued that the supreme court had made many aggressive decisions which apparently was miscarriage of law and to add fuel to fire the victims are deprived of even the right of appeal. Justice Ijaz however stuck to his earlier argument that according to the constitution, decisions by the supreme court are substantive provisions of the constitution and cannot be overturned by any subordinate law.
Both the Chief Justice and Justice Minullah presented a different perspective, contending that lawyers should provide examples where rules established by an unelected Supreme Court could serve as grounds to nullify legislation enacted by an elected parliament. They argued that the right of appeal, as stipulated in the contested law, aligns with the principle of ensuring access to justice. This implied that laws serving the greater good of the people might be enacted, even if they seemingly contradict the constitution.
Justice Ayesha raised a pertinent query, highlighting that the impugned law had established a constitution of a full court, which, once rendering a decision, effectively closes the door to any further appeals. She questioned the justification of this approach in terms of ensuring access to justice for the affected party, prompting a thoughtful examination of the law’s provisions and their implications.
During the proceedings, one judge pointed out that the court has the authority to rectify and address errors made by the Supreme Court. He cited the Asma Jilani case as an example in which the court reviewed its own previous decision, acknowledging it as incorrect and labeling the associated law as flawed. The Chief Justice voiced concerns about the Supreme Court’s recent trend of disregarding the constitution under external pressures and making decisions based on personal inclinations. He asserted that the judiciary possesses the courage and authority to openly criticize and declare Supreme Court decisions as erroneous when necessary.
The debate surrounding Article 191 was intense. Article 191 begins with a statement that the Supreme Court can formulate rules, subject to the constitution and the law. Since both the constitution and the law are created by Parliament, it was argued that the Supreme Court Practice and Procedure (SCPP) law appeared to be constitutionally valid.
One distinguished judge contended that even after the enactment of the impugned law, the Supreme Court retains the authority to establish rules that adhere to any new legislation, underscoring the court’s ongoing rule-making power within the framework of the law.
Judge Ijaz presented a starkly contrasting perspective, asserting that Article 191 signifies that the Supreme Court can establish rules subject to both the constitution and the laws existing at the time of the constitution’s formation, without being bound by any laws passed subsequently. They argued that rules devised by the Supreme Court pursuant to Article 191 cannot be repealed by any subsequent legislation.
This viewpoint maintained that acknowledging Parliament’s authority to enact laws governing the Supreme Court’s rules and procedures would open a Pandora’s box, potentially leading to parliamentary control over the Supreme Court, thereby contravening the fundamental principles of the constitution, which explicitly advocate for the separation of powers among the three pillars of the state. Justice Ijaz emphasized that any rules formulated by the Supreme Court are in accordance with the powers vested in it by the constitution, and as such, cannot be curtailed by ordinary legislative acts.
This proceeding underscored a significant challenge: the presence of numerous judges, each with their own perspectives on the issues under consideration. This multitude of viewpoints made it exceedingly difficult for the lawyers involved to respond effectively to the barrage of questions posed by the 15 judges. Consequently, the proceedings became more intricate and bewildering.
Had the bench been smaller, the discussion might have centered more on objectivity rather than each judge attempting to assert their viewpoint. In the current scenario, it seemed as if the lawyer was placed in a challenging position, akin to a punching bag or a candidate facing a rigorous job interview, with each member of the evaluation panel attempting to scrutinize the interviewee. Even the honorable judges acknowledged the challenging position of the lawyer and expressed their sympathies for the predicament faced during the proceedings.
A lawyer representing PTI (Pakistan Tehreek-e-Insaf) contended that while Parliament holds the authority to enact laws, this power is bound by specific provisions outlined in the constitution, particularly as delineated in Article 175(2) and Article 142. He introduced an intriguing perspective, asserting that in accordance with Section 142, Parliament is empowered to create legislation solely concerning the federal legislative list, which notably excludes the authority to formulate laws pertaining to the Supreme Court.
In response, the Chief Justice posed a thought-provoking question: If it is accepted as a fact that Parliament is restricted from legislating on matters related to the Supreme Court, how can the legislature effectively address emerging subjects such as artificial intelligence, social media, and other developments across various fields? The lawyer argued that legislative lists encompass subjects and domains of a considerably broader nature, and emerging topics would inherently fall within one of these categories, allowing for their effective regulation and oversight.
An intriguing observation was raised during the proceedings, highlighting a unique aspect of the law concerning the Supreme Court: there are two pillars, the Supreme Court itself and the Parliament, both possessing the authority to simultaneously enact laws. The constitution grants legislative powers to both these entities, leading to considerable confusion and ongoing debate. Clearly, the constitution could not have intended to sow confusion and chaos, implying that it should also offer a solution to this matter. However this question remained unaddressed.
At the outset, the Chief Justice made a clear declaration that the full court would issue a verdict on the impugned case on the same day. He advised the lawyers to conclude their arguments swiftly and efficiently. He emphasized that the Supreme Court was determined to expedite the resolution of pending cases, ideally on that very day, given the significant backlog of cases awaiting attention. Regardless of the nature of the case, the Supreme Court pledged to allocate proportional time to each matter, aiming to address the issue of pending cases in Pakistan’s Supreme Court. However, it was anticipated that this particular case would likely result in a divided decision.