ISLAMABAD: In a groundbreaking move, Chief Justice of Pakistan (CJP) Qazi Faez Isa, freshly sworn in, has initiated a full court hearing to address petitions challenging the Supreme Court (Practice and Procedure) Act, 2023. This legislation aims to restructure the authority of the Chief Justice, with the added momentous decision to allow live broadcasts of the proceedings.
Before commencing the hearing, Chief Justice Isa consulted with Supreme Court judges to gauge their opinion on broadcasting the proceedings live. Sources indicate that a majority of the judges favored the idea, though some expressed reservations about conducting proceedings under the media’s scrutiny.
The significance of this full court hearing lies in the composition of its members, all of whom ascended to superior court positions following their support for the 2007 lawyers’ movement, a movement aimed at preserving judicial independence. The movement was a response to the apex court’s removal of over 100 judges in a July 31, 2009 judgment.
Interestingly, the last time a full court convened was for a hearing on Justice Isa’s petition challenging a presidential reference filed by the PTI, which sought his removal over alleged omissions in his wealth statement regarding family members’ foreign assets. The bench ultimately nullified the presidential reference with a majority decision.
Previously, a 17-judge full court had convened to deliberate on petitions challenging the 18th and 21st constitutional amendments during Chief Justice Nasirul Mulk’s tenure.
Lawyers generally appreciate Chief Justice Isa’s public acknowledgment of the potential misuse of public interest jurisdiction under Article 184 of the Constitution.
During the hearing, Justice Isa also referenced the Supreme Court’s January 2013 ruling in the Reko Diq case, where a mining company, after its agreement with the Balochistan government was voided by the apex court, sought international arbitration and was awarded a $6.5 billion penalty against Pakistan. Justice Isa characterized the Reko Diq decision as a “Himalayan mistake.”
Chief Justice Isa may become the first CJP willing to share discretionary powers with two other judges, as prescribed by the Supreme Court (Practice and Procedure) Act, 2023.
He also expressed regret over the absence of full court meetings since 2019 and revealed his intention to regulate the CJP’s powers while strengthening the high courts by avoiding direct involvement in matters under Article 184(3) of the Constitution, raising questions about the validity of petitions challenging the Supreme Court (Practice and Procedure) Act, 2023.
However, some lawyers suggest that Chief Justice Isa should maintain a more polite demeanor during the proceedings, viewing this hearing as a test of his temperament.
During Monday’s full court proceedings, three prevailing viewpoints emerged.
There was a division within the full court concerning parliament’s competence to enact laws regulating Supreme Court affairs. Some judges, including Justice Ijazul Ahsan and Justice Munib Akhtar, expressed reservations, citing potential violations of the separation of powers and judicial independence. They argued that only the full court should amend rules related to the CJP’s discretionary powers.
On the other hand, judges like Justice Syed Mansoor Ali Shah and Justice Athar Minallah supported parliament’s authority to regulate the CJP’s discretionary powers, also questioning the term “master of roster” used for the CJP’s bench formation.
Resistance from one section of the full court was evident regarding the right of appeal in cases decided under Article 184(3) of the Constitution. Some judges are concerned that granting the right of appeal could overturn several high-profile decisions, including the Panamagate case.
It is evident that if this legislation is upheld, judgments delivered during the tenures of former CJPs Saqib Nisar, Gulzar Ahmed, and Umar Ata Bandial could potentially be reconsidered, marking a significant shift in judicial proceedings. A legal expert believes that with all three judges agreeing to form benches through consultations, practical changes may be on the horizon.