Ordinance gives CJP wide berth to shape benches

• Justice Amin-ud-Din Khan replaces Justice Munib Akhtar on pivotal committee
• Changes to Practice and Procedure law allow for any SC judge to be picked as third member of body to form benches
• Under fresh changes, hearing of every matter and appeal in apex court will be recorded
• Experts see pitfalls in ignoring seniority in reconstitution of three-judge panel

ISLAMABAD: Moments after the federal government promulgated an ordinance to amend the Supreme Court (Practice and Procedure) Act 2023, Chief Justice of Pakistan (CJP) Qazi Faez Isa on Friday changed the composition of the three-judge committee by substituting Justice Amin-ud-Din Khan in place of Justice Munib Akhtar.

Information Minister Attaullah Tarar confirmed in a statement that President Asif Ali Zardari had given assent to the Supreme Court (Practice and Procedure) Amendment Ordinance 2024, following the federal cabinet’s approval of the ordinance to “serve the public interest”.

Under the previous version of the law, the three-judge body that deals with cases under Article 184(3) of the Constitution — often referred to as the apex court’s suo motu jurisdiction — was supposed to consist of the three senior-most judges.

Under the ordinance, a change in the wording of the law now allows the CJP to pick any judge of the Supreme Court to be the third member of the body.

Usually, the committee meets every Thursday to decide about the cases, moved under Article 184(3) of the Constitution, to be heard during the upcoming week.

“In exercise of powers under Section 2(1) of the Supreme Court (Practice and Procedure) Act 2023 as amended by the Ordinance No VIII of 2024, CJP has been pleased to nominate Justice Amin-ud-Din Khan as the third member of the committee,” said an office order issued under the signatures of the registrar of the Supreme Court.

Justice Khan is fourth in the line of seniority after the CJP, while Justice Yahya Afridi is currently the third senior-most judge of the apex court.

The development forced former additional attorney general (AAG) Tariq Mehmood Khokhar to comment, “Justice Munib Akhtar was one of the pre-eminent judges of his generation”. “Fiercely independent and conscientious. His abrupt ouster from the committee by the CJP, on the eve of his retirement and through a rushed ordinance, borders on the outrageous,” he regretted.

On the other hand, Reema Omer, a rights activist and legal analyst, said in a series of tweets that the Constitution does not grant the CJP the power to decide unilaterally or arbitrarily.

When power is concentrated in an individual, disastrous consequences follow, Ms Omer feared, adding that when consultation takes place with two senior-most judges, there is continuity and the CJP’s office is also strengthened.

According to her, the ordinance amending the Practice and Procedure law would give the CJP the ‘arbitrary’ and ‘unilateral power’ to nominate the third member of the committee from time to time.

Clearly, this ordinance is against the reasoning in the Supreme Court judgement upholding the Practice and Procedure Act, she pointed out, besides the development was also against another judgement authored by the CJP in which he held that ordinances may only be promulgated in respect of emergent matters because this alone was what the Constitution permits.

“Changing the composition of the committee, clearly is not an emergent matter,” she added.

Changes to existing law

Through the Ordinance VIII of 2024, ‘clause 1’ has been inserted in Section 2 of the Act, saying: “Every cause, appeal or matter before the Supreme Court shall be heard and disposed by a Bench constituted by the committee comprising the Chief Justice of Pakistan, the next most senior judge of the Supreme Court and a judge of the Supreme Court nominated by CJP from time to time.”

Likewise, ‘clause 2’ has been inserted in Section 3 of the Act, stating that a bench hearing a matter under Article 184(3) of the Constitution, will decide and identify, before proceeding with the matter on merits through a reasoned and speaking order on the question of public importance involved in the matter and the fundamental right which was sought to be enforced.

Similarly, sub-sections a and b have been inserted in Section 7 of the Act.

Section 7 deals with the application for fixation of urgent matters stating that an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing.

Now, Section 7A states that: “Unless a transparent criteria was already mentioned or the applicable law requires a decision within a stipulated time, every cause, matter or appeal in the Supreme Court will be heard at its turn based on first in, first out, that is to say, the cases filed first will be heard first. Any bench hearing a case out of its turn will record its reasons for doing so.”

Section 7B, deals with the recording and transcript of the proceedings and states, “Hearing of every cause, matter or appeal in the Supreme Court will be recorded and transcript thereof duly prepared.”

Such recordings and transcripts will be made available to the public, the amendment said, adding that for the purposes of reliance, thereon in any court proceedings, only a certified copy of the transcript against the payment of a fee amounting to Rs50 per page will be used.

CJP ‘gets majority’

The change in the composition of the committee is expected to give the CJP, who during earlier meetings seemed to be in the minority, an upper hand.

For instance, the CJP had disagreed with a decision taken during the committee’s July 18 meeting and even wrote a separate note highlighting that the right of review had been provided under the Constitution and such right had to be preferred over the convenience of the judges who were availing leave or vacations.

During the 17th meeting, the CJP had suggested to hear as early as possible the PML-N’s petition seeking to recall the July 12 short order in the reserved seats case, but the majority view was that the matter be heard after the summer vacations when all the 13 judges, who had decided the case, will be available at the principal seat at Islamabad.

In his note, the CJP had also highlighted that as judges had taken oath to abide by the Constitution, it would be unjust and unfair if the review petitions were not fixed urgently.

He had stressed that the order under review necessitated the re-opening of court even if it required cancellation of vacations.

On the other hand, Justice Shah and Justice Akhtar had suggested that under Order 26, Rule 8 of the Supreme Court Rules 1980, review petitions could only be fixed before the 13-judge bench that had heard the matter originally.

Additionally, the judges in majority had highlighted that review petitions cannot be fixed for hearing until the detailed judgement on the reserved seats was released, which is still awaited.

In his remarks on Friday, Mr Tarar said that a petition regarding the review of apex court’s interpretation of Article 63-A was pending to date.

He remarked that some decision should have come regarding the revision of the case as it was an important matter.

“All these reforms and amendments have been made keeping in mind the interests of the common people,” he said.

Syed Irfan Raza also contributed to this report

Published in Dawn, September 21st, 2024