• Justice Isa observes Constitution not ‘subservient’ to whims of top judge
• Says Article 184(3) has been misused ‘flagrantly’
• Justice Ijaz wonders whether legislature can ‘micro-manage’ independence of judiciary

ISLAMABAD: Chief Justice of Pakis­tan (CJP) Qazi Faez Isa on Monday obs­e­rved that parliament must not be hampered from doing something good merely because it lacks two-thirds majority.

The observation came during the hearing of nine challenges to the Supreme Court (Practice & Procedure) Act, 2023, by the full-court bench comprising all 15 judges of the apex court.

The CJP cautioned that the Supreme Court should not send out any such message that Constitution and Pakis­tan’s laws were dependent on the “size of the shoes” of the top adjudicator.

“The Constitution and laws are not subservient to the whims and wishes of the CJP,” he observed, adding that otherwise the next CJP will do whatever it pleases him to do. This will be destructive to the rule of law, independence of judiciary and everything, the CJP observed.

While recalling that the traumatic and fragile history of Pakistan should also be remembered, he observed, “Do you need entire membership of parliament to rectify a mistake committed by three judges?” Bringing a constitutional amendment through two-thirds majority is not that easy, he pointed out.

“Today we are half a country,” the CJP said and added that Article 184(3) of the Constitution had been misused flagrantly in the past.

What will happen if, in a fit of rage, an SC judge bans a political party and petitions against this decision under Article 184(3) are never fixed and remain pending, he asked.

Rationale behind scheme

When the Constitution has put up a scheme, Justice Ijaz-ul-Ahsan interjected, there was a reason or rationale behind it and went on to question whether parliament could micro-manage the independence of judiciary by dictating how cases be fixed, which judges should hear the cases, how the court’s roster should be made. etc.

“If we open the doors for parliament to interfere in the affairs of the Supreme Court, then there will be no end to it. When the Constitution is silent about providing an appeal against decisions taken under Article 184(3), then how could it be provided through a simple legislation by parliament with an aim to enlarge the court’s jurisdiction.”

While citing sections 3 and 4 of the Practice and Procedure Act, Justice Ijaz feared these provisions virtually mean to dictate how the SC conducts its business that eventually amounts to interference in the independence of the judiciary.

The CJP, however, observed that they should talk about the independence of the Supreme Court and not the independence of the chief justice, who earlier used to decide the fixation of cases, which the incumbent had devolved to a committee of judges.

“Why are we afraid of this open door syndrome,” wondered Justice Syed Mansoor Ali Shah, adding that the SC can strike down any law meant to reduce its authority. He, however, cautioned that it was time “we should wake up since there was no concept of master of the roster in countries like USA, United Kingdom, Australia, Brazil, Germany, etc”.

Courts in these countries work through a collegium of judges, he observed, adding that parliament was being referred to in a derogatory manner as if they are the Indians.

“I don’t want to disrespect, but masters come and go,” Justice Munib Akhtar observed, saying future CJPs could do whatever they like. In the present matter, he wondered, “who is the master of the roster, is it parliament?”

Justice Shah cited an analysis in India called “Court on Trial” to establish that CJPs had managed the outcome of a case by manipulating things when certain judges dissented from their viewpoint.

Justice Akhtar, however, retorted that it was the principle that matters since independence of the judiciary matters.

When the CJP recalled that a combination of factors like excessive use of Article 184(3), delay in fixation of cases on time, etc had forced parliament to consider resolving the issues by enacting the Practice & Procedure Act, Justice Akhtar said he had very serious reservations over imputing things to the retired CJPs, who could not defend themselves now.

Senior counsel Salahuddin Ahmed, while representing PML-N, contended that parliament represented people and people can have the right to determine how the court should function. “People can dictate the Supreme Court how to function.”

At this, Justice Ahsan emphasised that if people want to say anything then let them say it through the Constitution, adding that only 32 members of the National Assembly don’t speak for the entire parliament, but a particular party.

The counsel contended that the concern regarding concentration of power in the office of CJP had been raised in the past, adding that the case relates to both internal and external threats to the independence of judiciary. Yet, he said, no structural change had ever been brought in it.

Justice Minallah asked the counsel to explain if parliament is competent to legislate and if yes then “we should respect the parliament and not view this as a dictation”.

While referring to the three-judge committee, the CJP said the only thing was that previously there was one pilot and now there were two co-pilots, and gave an example of an acting CJP coming in when the incumbent left the country.

Barrister Salahuddin said Article 191 was a standalone “enabling provision”. “Read with the first part of Article 58, it is more than enough to confer legislative competence on part of parliament,” he said.

Earlier, Zahid F. Ebrahim on behalf of PML-Q and Abid Shahid Zuberi on behalf of the Supreme Court Bar Association argued before the court. The hearing, which commenced at 9:30am and culminated at around 6pm with three 30-minute breaks, was also live-streamed and broadcast all national television.

Published in Dawn, October 10th, 2023