Much ado over legislation, but capitulation before martial law

ISLAMABAD: Chief Justice Qazi Faez Isa on Tuesday questioned the many legal challenges to parliament’s legislative authority, saying there has been much nit-picking over laws enacted by assemblies, but in the face of martial laws imposed in the country, there is always a complete surrender.

“We pick errors whenever parliament made a law, but surrender ourselves completely when martial laws were imposed in the country,” Justice Isa said during the full court hearing of petitions against the Supreme Court (Practice and Procedure) Act 2023.

“This Courtroom No.1 carries pictures (of former CJPs) who obviated their oaths by validating martial laws, but nobody moves petitions to express opposition [to their action], except when parliament enacts laws,” Justice Isa quipped during a televised hearing. Justice Isa intended to wrap up the case the same day, but it was adjourned till next Monday due to time constraints.

With two breaks of 30 minutes each, the proceedings began at 9:30am and were closed at 4:35pm.

A number of counsels still wished to argue amid a volley of observations by judges. One of the counsels, Hasan Irfan Khan, even had to say that he was only responding to the observations of the judges instead of advancing his arguments. The CJP asked counsels representing different petitioners to furnish in writing their pleas if they want to advance anything.

Citing the 2000 Zafar Ali Shah case, the CJP regretted that the Supreme Court bestowed all powers upon ‘adventurers’, even to amend the Constitution. The present law provided an opportunity to revisit earlier decisions, he added.

He said the country was destroyed by vesting entire authority in one individual, and then went on to cite the example of the Reko Diq case in which the country faced a whopping penalty of $6.5 billion. Yet the court had no avenue but to ajar its doors by invoking Article 186 of the Constitution — a provision which deals with the court’s advisory jurisdiction on a presidential reference.

“Instead of ignoring, we should respect parliament,” the CJP said, adding that judicial history was replete with instances like the 1955 Maulvi Tamizuddin case, 1956 Dosso case, 1977 Nusrat Bhutto case and 2000 Zafar Ali Shah case in which individuals were vested with absolute decision-making power.

He wondered why the petitioners feel aggrieved if the judges want to decide matters through consultations. “They have amended the Cons­titution in the garb of the simple legislation,” replied the counsel, arguing that the act impinges upon the internal functioning of the judiciary.

“Instead of attacking or imputing motives to parliament, we should discuss what bad this law has brought that may harm the interest of the people,” CJP Isa observed. “Had the Supreme Court remained confined to its domain, parliament would not find the need to provide appeals against decisions taken under this provision,” he observed.

Justice Munib Akhtar recalled that the court set aside the decision to legitimise the 1958 martial law through the Asma Jillani case. He wondered was the apex court hearing an appeal against the Dosso case when it decided on the Asma Jillani case. Justice Akhtar added if parliament has to intervene in the fixation of cases, then there would be no end to it and the concept of separation of powers will become illusionary.

Justice Ijazul Ahsan observed an appeal was a substantive right and it has to be granted in a substantive manner. “The basic question which needed to be answered is which entity could provide the appeal against 184(3) decisions,” Justice Ahsan observed, recalling that the Constitution does not provide any appeal on suo motu decisions. “The appeal can only be provided through a constitutional amendment and not through a simple legislation,” Justice Ahsan said.

Justice Athar Minallah said after 2010, the SC departed from Darshan Masih and Benazir Bhutto cases and excessively used Article 184(3). He added this was the reason the representative body enacted the current law to provide a remedy.

Justice Mansoor Ali Shah reminded that Article 191 of the Constitution itself authorises parliament to legislate regarding practice and procedure.

Advocate Uzair Bhandari, on behalf of PTI, contended that though parliament can make laws, this power was heavily circumscribed; therefore, parliament was not competent to provide an appeal against decisions taken in Article 184(3) cases.

The CJP said since the counsel was representing a political party then why the arguments being raised in the court were not taken up in parliament? “Instead of doing your job, you have come to burden the court,” the CJP regretted.

“Let’s suppose the CJP becomes unreasonable and despite requests by his colleague judges he refuses to call a full court meeting and says tough luck to all. How could we then resolve the issue,” Justice Isa wondered.

Justice Akhter said judges were not appointed for life but rather have a retirement age and keep changing. At this, the CJP observed that “no one can touch him until he retires”.

Justice Akhtar retorted “We also have a Supreme Judicial Council.” “And how effective has the SJC been,” Justice Shah quipped.