ISLAMABAD: Newly sworn-in Chief Justice of Pakistan (CJP) Qazi Faez Isa has created history by forming a full court for hearing petitions against the Supreme Court (Practice and Procedure) Act, 2023 — a law that seeks to streamline the CJ’s power — while also allowing live telecast of the proceedings.
Before commencing the proceedings, CJ Isa sought the opinion of the SC judges on the proposal to broadcast the hearings live. According to sources, a majority of the judges approved the idea, but some judges were unwilling to hold the proceedings under the media’s spotlight.
The full court hearing is significant in many ways. Most important, all members of the full court were appointed as superior court judges after the 2007 lawyers’ movement. They had supported the movement that aimed to restore independent of the judiciary. The apex court had removed more than 100 judges through its July 31, 2009 judgment.
Interestingly, the last time a full court had convened was to hear Justice Isa’s petition against a presidential reference moved by the PTI, seeking his removal for allegedly not disclosing his family members’ foreign assets in his wealth statement. The bench had set aside the presidential reference with a majority vote.
Previously, a 17-judge full court had heard the petitions challenging the 18th and 21st constitutional amendments during the term of CJP Nasirul Mulk.
Lawyers generally appreciate CJP Isa for publicly acknowledging the misuse of public interest jurisdiction under Article 184 of the Constitution.
During the hearing, Justice Isa also referred to the Supreme Court’s January 2013 verdict in the Reko Diq case. The mining company, whose agreement with the Balochistan government was voided by the apex court, had later moved an international tribunal that awarded a $6.5 billion penalty on Pakistan.
Justice Isa termed the SC’s Reko Diq ruling a “Himalayan mistake.”
Perhaps Justice Isa will be the first CJP willing to share his discretionary powers with two other judges, as prescribed by the Supreme Court (Practice and Procedure) Act, 2023.
He also lamented that no full court meeting has been held since 2019.
Since May 2019, CJP Isa had not been included in any bench hearing matters related to constitutional interpretation. He himself became the victim of the discretionary powers of his four predecessors.
It was clear from Justice Isa’s remarks that he not only wants to regulate the CJP’s powers but also aims to strengthen the high courts by not entertaining any matter directly under Article 184 (3) of the Constitution. That’s why he consistently raises questions about the maintenance of the petitions challenging the Supreme Court (Practice and Procedure) Act, 2023.
However, some lawyers suggest that CJP Isa should be more polite during the hearing. This hearing is also a test of his temperament, they said.
Three views emerged during Monday’s full court proceedings.
There is division within the full court about the competence of parliament to make laws regulating the affairs of the Supreme Court.
One section of judges, especially Justice Ijazul Ahsan and Justice Munib Akhtar, are hesitant to endorse such legislation as they believe it violates the principle of the trichotomy of powers and the independence of the judiciary.
They argue that if this act of parliament is endorsed, more legislation will follow regarding the internal workings of the apex court. They believe that only the full court can amend rules related to the discretionary powers of the CJP.
However, some judges, particularly Justice Syed Mansoor Ali Shah and Justice Athar Minallah, support the parliament’s competence to regulate the CJP’s discretionary powers. They also question the term “master of roster,” which is used for the CJP to form benches at his discretion.
There is strong resistance from one section of the full court regarding the right of appeal in cases decided under Article 184 (3) of the Constitution.
A lawyer said some judges are aware that providing the right of appeal could lead to the overturning of several decisions in high-profile cases like the Panamagate case.
It is clear that if this law is upheld, several judgments announced during the terms of former CJPs Saqib Nisar, Gulzar Ahmed, and Umar Ata Bandial could be overturned.
A lawyer believes that practically the stay is vacated as all three judges have agreed to form benches through consultations.