Lawyers sit as a television screen dispays the live broadcast of the proceeding from the Supreme Court, at the Sindh High Court Bar Association in Karachi, on Monday. Reuters
In a historic first, the Supreme Court (SC) broadcast live on TV channels the proceedings relating to the curtailing of the powers of its chief justice through a law that the previous government enacted but had been stayed by outgoing Chief Justice Umar Ata Bandial and two other judges in April.
Isa, 64, was sworn in as chief justice on Sunday after he became the most senior judge of the court on the retirement of his predecessor Justice Umar Ata Bandial. Isa's first move as the top judge was to open proceedings for live broadcast.
"It is a majority consensus decision to telecast live," Isa said at the start of proceedings shown live by state-run broadcaster Pakistan Television. Previous attempts to broadcast proceedings live had been blocked by the court. The broadcast was shown uninterrupted by all major private TV channels.
New Chief Justice Qazi Faez Isa was all for cutting down his powers through the now suspended Supreme Court (Practice and Procedure) Act 2023 — which requires formation of benches on constitutional matters of public importance by a committee of three senior judges including the topmost justice.
The difference of opinion among the judges amply surfaced during the lengthy proceedings. Some of them staunchly supported the law while others equally vehemently opposed it. The chief justice said he did not want to have powers that did not make him accountable.
President Arif Alvi administers the oath to Justice Qazi Faez Isa as Chief Justice in Islamabad.
Shortly after taking oath on Sunday, the new chief justice — whose 13-month tenure ends in October 2024 — formed a full court to take up a set of pleas challenging the legislation, which was suspended by the court under the then chief justice led bench earlier in April.
Headed by the chief justice, the bench consists of Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.
Before the hearing began, the federal government urged the top court to dismiss the pleas challenging the law. In a detailed reply submitted by Attorney General for Pakistan (AGP) Mansoor Usman Awan, the government contended that the petitions challenging an act of Parliament were inadmissible.
Lawyers, some of them look on television screen, dispaying the live broadcast of the proceeding from the Supreme Court, at the Sindh High Court Bar Association in Karachi. Reuters
The lawyers arguing the set of the pleas came to the rostrum. Addressing them, Justice Isa said, "Appreciate that some of us have heard this matter and some of us are going to hear it for the first time.”
He said that since one member of the bench had retired there was a matter of reconstituting the bench.
"A question had also arisen whether I should be a part of the bench; then the related question that all those who will become the chief justice should become part of the bench; so I think the best way to resolve it was to constitute a full court if you agree.”
Advocate Khawaja Tariq Rahim kicked off the arguments in the case, with Justice Ayesha Malik asking what would happen to Section 5 in the event the law was upheld.
"There is a right of appeal that is provided under this law. How do you visualise that right being exercised,” she asked. Justice Isa then asked Rahim to read the law out loud. However, the lawyer kept getting sidetracked, with the judges repeatedly telling him to read the Act.
"The country expects 57,000 cases to be decided. We would love to hear from you. But let’s focus on your petition; proceed with your arguments,” Isa remarked. Rahim then proceeded to read out the Act.
However, he again stopped reading out the law and said, "Framing of these rules, under Article 191, is the prerogative of the SC. When they framed the 1980 rules, the entire court sat together and together they framed the rules.”
Justice Naqvi, however, wondered whether the lawyer was suggesting that he did not have any objection to the "unaccountable powers in one office.”
"Is that your question? Are you supporting what has happened in the past? What is your legal proposition?” he asked. Justice Isa again asked Rahim to read the Act out loud. You read the Act. Either you say this entire Act is ultra vires the Constitution, that’s one contention. You don’t need to respond to every query immediately, it will make your life very difficult, when you are done with your arguments, you can absorb the questions and respond,” Justice Isa said.
Rahim said that Parliament should not have a say in functions that lay with the top court. He said that tomorrow Parliament could order that a particular bench hears a case.
"Let’s not go into what they may or may not do; what Parliament decides to do in the future, you can bring another petition and we can look at it then. restrict yourself to your case,” Justice Isa interjected.
In this connection, Justice Minallah further pointed out that since this power earlier resided solely with the chief justice, an argument was raised that the outcomes of cases could be influenced by constituting benches and this eroded the independence of the judiciary.
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