Every institution is responsible for conducting self-accountability, remarked Chief Justice of Pakistan (CJP) Qazi Faez Isa on Tuesday as the top court resumed hearing on petitions challenging the Supreme Court (Practice & Procedure) Act 2023.
The hearing was adjourned till tomorrow (Wednesday) after the Muttahida Qaumi Movement-Pakistan’s (MQM-P) counsel Faisal Siddiqi completed arguments in favour of the law.
The Pakistan Bar Council (PBC) and attorney general of Pakistan (AGP) are due to present arguments at the next hearing.
Questions have been raised on parliament’s competence to regulate the administrative workings of the Supreme Court (SC) as well as transparency in the workings of the judiciary in previous hearings.
The law in question, passed by the parliament in April 2023, regulates discretionary powers of the chief justice of Pakistan (CJP) by requiring a committee of three senior judges of the apex court, including the CJP, to form benches for constitutional matters of public importance and taking suo motu notice.
A full court led by CJP Qazi Faez Isa and comprising Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Mazahar Ali Akbar Naqvi, Justice Jamal Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali, has taken up nine review petitions against the 2023 Act.
The petitioners view the law as an attempt to clip the powers of the CJP and pave the way for parliament’s interference in the internal workings of the apex court.
Today (Tuesday) was the fourth hearing on the matter, which has been live telecasted since the proceedings began.
The court intended to conclude the case today but the hearing was adjourned due to time constraints.
At the outset of the hearing, Faisal Siddiqi contended that the petitions should be dismissed on merit while acknowledging that they were maintainable.
He maintained that an intra court appeal was “liberating” and both the apex court and parliament could provide for them.
At this, Justice Ahsan said that the basic principle was that an appellate for the right of appeal is provided by the statute which conferred the jurisdiction in the first place. Here, it is the Constitution creating the statute and if the right to appeal is provided it should be provided by the same jurisidiction – the Constitution – and not by a sub-constitutional legislation, he said.
During the hearing, CJP Isa expressed regret that despite four hearings, it was the court’s performance that the case had not concluded.
At one point, he asked his fellow judges to allow the counsel to complete his arguments when Justice Akhtar questioned Siddiqi in the middle of his argument.
This prompted Justice Akhtar to register his own objection at being “interrupted all the time”.
When asked by the CJP whether any political party voted against the law under review, Siddiqi apprised the court that the Pakistan Tehreek-e-Insaf (PTI) had opposed in the Senate.
The CJP also questioned whether the SC rules were binding on an apex court bench. Siddiqi replied in the affirmative.
Meanwhile, Justice Minallah noted that the separation of powers was limited to the judiciary. “What if the judiciary starts encroaching upon the powers of the legislature…so the Parliament is empowered to legislate and all that they have legislated is something that ensures access to justice,” he asked.
Justice Hilali observed that excercising of jurisdiction under Article 184 (3) of the Constitution had shaken the fundamentals of the country.
At one point, CJP Isa remarked that all power would be vested in the CJP, not in the full court because the latter would be dependent on whether the former calls a meeting for it or not.
He asked whether parliament could be intervened if the CJP does not summon a meeting of the full court to ammend SC rules.
Siddiqi argued that the independence of the judiciary would not be threatened if the role of the CJP was reduced.
He contended that there was nothing in the law in question which made the parliament the master of the roster. “In terms, there is no constitutional provision that gives this elated position to the CJP…for example giving the power to constitute benches to a three-member committee, how does that violate the independence of the judiciary?”
During the hearing Justice Ahsan remained consistent that if the right to appeal was provided under Article 184 (3) then the Constitution should be amended.
Meanwhile, Justice Akhtar observed that the problem is not the creation of the committee of three senior judges but the fact that it was created by parliament, which made the legislature the master of the roster.
The CJP observed that every institution was responsible to conduct self-accountability.
On Monday’s hearing, CJP Isa observed that parliament’s intent should not be doubted. He remarked that parliament should not be prevented from doing good just because it lacked two-third majority.
He further added that the chief justice of Pakistan should not go beyond the Constitution and the law.
While presenting arguments in his individual capacity, Dr Adnan Khan said that the office of the chief justice had been rendered redundant through the Act. Under the Constitution, the chief justice was in the driving seat in administrative matters.
PML-Q lawyer Zahid Ibrahim, while arguing in favour of the legislation, said that the constitutional powers of this court had not been reduced under the Act. He added that the petitioners, who had challenged the legislation, had not said anything as to which fundamental right was affected by the Act.
PML-N lawyer Barrister Salahuddin said that several chief justices and judges had shown reservations to the use of the Article 184(3) of the Constitution, adding that the Pakistan Bar Council (PBC) had been demanding for 10 years for regulating the powers of the chief justice.
Rana Shahid Advocate raised the point that if the 15 judges of the apex court decide the case, where would the appeal go? The chief justice replied that the appeal would not go anywhere, rather it would go to Allah.
During the hearing, Justice Munib Akhtar remarked that through this legislation, parliament had been made the master of roster. The chief justice remarked that he was the master of the roster, but also the servant to the Constitution and answerable to Allah.
Justice Mansoor Ali Shah remarked that the age of the masters has ended all over the world and “now we must wake up”. He cited examples of many countries, including the United States and Brazil, where the judiciary conducted its affairs with mutual consultation.
Justice Akhtar said that masters come and go, and no one remains a master forever.
Chief Justice Isa remarked that another chief justice would leave the office in October next year – a reference to his own self. He then said: “The question is, how will we respond to those who have been harmed?”
Barrister Salahuddin said that several chief justices and judges had expressed reservations to the use of the Article 184(3) – which relates to the suo motu powers of the apex court. He said it was not written in the Constitution that the chief justice had the authority to appoint a bench and to hear cases.
He pointed out that since the 1960s, powers of the Supreme Court were expanded by reducing the authority of the chief justice as master of roster. He also gave an example of India, where four Supreme Court judges held a press conference against their chief justice in January 2018.
The chief justice said that it was to be seen what the Supreme Court of India decided on the case against the special status of Indian Illegally Occupied Jammu and Kashmir. He said that Practice and Procedure Act appointed two co-pilots with the chief justice.
However, he added that it could not be said that parliament did it maliciously, parliament enacted the legislation in good faith. The PML-N lawyer, agreed, saying that the independence of the judiciary was strengthened by the legislation.
Justice Minallah inquired whether the cases, which had already been reviewed, would also have the right to appeal. Barrister Salahuddin replied that the cases in which the revisions had been dismissed could not benefit from this legislation.
The right to appeal would be granted on only those decisions which had been taken 30 days before the law was enacted. However, he added that the court might limit the right to appeal by framing rules on the basis on this law.
Supreme Court Bar Association (SCBA) President Abid Zuberi said that if the right to appeal was made available since 1973, it would increase the burden of cases on the Supreme Court. However, the chief justice said the burden would fall on the court “why are you panicking”.
Justice Ahsan inquired if the decision of the three-member committee [of the apex court judges] was administrative, then who would hear the appeal? Justice Mandokhel said that the appeal could be made possible by amending the rules.
During the hearing, Barrister Salahuddin completed his arguments, while lawyers of the Jamaat-e-Islami (JI) and the Jamiat Ulema-e-Islam-Fazl (JUI-F) adopted the arguments for the act.
SHC’s stay on executive committee orders irks PBC
Pakistan Bar Council Vice Chairman Haroonur Rasheed has taken strong exception over the Sindh High Court to grant stay on its executive committee orders, demanding of the chief justice of Pakistan to look into the matter and take appropriate action in this regard.
In a statement issued on Monday, the PBC vice chairman said, “It is often observed that Orders of Executive Committee of the Pakistan Bar Council which are assailed by the aggrieved person(s) before the Hon’ble High Court of Sindh through civil suit are being taken up by the High Court of Sindh in the Court or in Chamber and injunctive Order has been passed which are not entertainable in the eye of law due to lack of jurisdiction.”
Rasheed said, “The High Court of Sindh has no jurisdiction to set aside any Order assailed which is passed by the Pakistan Bar Council or its Executive Committee at Islamabad the proper forum for that is Courts of ICT, so any order passed by the High Court of Sindh that would be non-existing and nullity in the eye of law as one rather sitting in Khyber-Pakhtunkhwa, Punjab or Balochistan cannot set over the territorial jurisdiction and the High Court of Sindh should not pass injunctive Orders on the matters decided by the Pakistan Bar Council at Islamabad just to please their blue eyed person(s), which amount to undue interference in smooth functioning of a statutory body having its office in Islamabad.”
The statement added, “The tendency of such like issues creates serious doubts upon credibility of those decisions which have been passed without jurisdiction.”
Rasheed said that no high court of any province had jurisdiction, especially the SHC, to create hindrance in affairs of the regulatory body of lawyers who had the mandate under Section 13(2) of the Legal Practitioners & Bar Councils Act, 1973, to decide matters of Provincial/Islamabad Bar Councils and all bar associations of the country, which were challenged before it.
Pakistan, UAE ink MoUs for mega investments
Pakistan and the United Arab Emirates (UAE) inked several Memoranda of Understandings (MoUs), paving the way for multi-billion dollar investments in diverse initiatives outlined by the Special Investment Facilitation Council (SIFC).
The signing ceremony took place in Abu Dhabi, witnessed by Caretaker Prime Minister Anwaarul Haq Kakar and UAE President Sheikh Mohammed bin Zayed Al Nahyan, subsequent to a bilateral meeting between the two leaders.
The MoUs cover investment cooperation across various sectors, including energy, port operations, waste water treatment, food security, logistics, mining, aviation, and banking and financial services. The agreements aim to foster collaboration and stimulate significant investments in these key areas, a handout released by the Media Wing of the Prime Minister’s Office and the Information Ministry.
Caretaker Prime Minister Anwaar-ul-Haq Kakar today held a bilateral meeting with His Highness Sheikh Mohamed bin Zayed Al Nahyan, President of the United Arab Emirates in Abu Dhabi. Chief of Army Staff General Syed Asim Munir, NI (M) was also present at the occasion.
— Prime Minister’s Office (@PakPMO) November 27, 2023
On the occasion, Kakar termed the signing of the MoUs a historic event that “will take economic cooperation between both brotherly countries to new heights and open doors of economic prosperity and socio-economic development of Pakistan”.
Kakar also highlighted the success of the SIFC in creating a business and investment-friendly environment through one-window operation and fast-tracking the initiatives. He expressed the hope that the MoUs would turn into tangible projects very soon.
Separately, Kakar, who is on a two-day visit to the UAE, said in a video message that with the signing of the MoUs, the bilateral economic and strategic relations had entered into a new era of bilateral cooperation. On that he congratulated the people of Pakistan and the UAE.
“Foundation of friendship with Pakistan that was laid by Sheikh Zayed bin Sultan Al Nahyan in the 1970s, has been taken forward by his son Sheikh Mohammed bin Zayed Al Nahyan to a new era,” the prime minister said in his message.
Earlier, Prime Minister Kakar held a bilateral meeting with Sheikh Mohamed. Chief of Army Staff General Syed Asim Munir was also present during the meeting. In their talks, the two leaders reaffirmed their resolve to strengthen the bilateral strategic cooperation and dialogue.
Prime Minister Kakar expressed profound gratitude for the UAE’s firm support for Pakistan in economic and financial domain. The UAE is home to 1.8 million Pakistanis, contributing to the progress, prosperity and economic development of the two brotherly countries, he noted.
Read more: Kakar arrives in Abu Dhabi on two-day visit
During the meeting, regional and global developments in the region were also discussed with particular reference to the escalating hostilities in the occupied Palestine. The prime minister expressed concern over the human cost of the dire situation in Gaza.
Kakar reiterated Pakistan’s full support to the UAE’s Presidency of the COP-28 and underlined the importance of the global gathering on climate change as an opportunity for meaningful progress towards effective and result oriented global actions on key areas, including the Loss and Damage fund.
Later in the day, Prime Minister Kakar embarked upon a two-day bilateral visit to Kuwait. During the November 28-29, 2023 visit, the prime minster will meet Kuwaiti Crown Prince Sheikh Meshal Al Jaber Al Sabah, Prime Minister Sheikh Ahmed Nawaf Al Ahmed AL Sabah.
The Foreign Office spokesperson said in a press release that the visit would include the signing of various MoUs in the fields of manpower, information technology, mineral exploration and food security, energy and defence.
IMF secured autonomy to access SBP info: Fawad
Privatisation Minister Fawad Hasan Fawad said on Monday that the International Monetary Fund (IMF) secured autonomy for Pakistan’s central bank to get direct access to the information that the federal government was reluctant to share with the global lender.
The startling statement by Fawad may further deepen suspicions about the motives behind securing the absolute autonomy for the State Bank of Pakistan (SBP) in January last year by the global money lender. This also raises questions on the role of the then central bank governor, Dr Reza Baqir.
The IMF first got the autonomy for the SBP, then made the central bank governor dependent on it and was now directly getting the information, which we earlier did not want to give to the IMF, Fawad said while responding to a question about the banking sector.
The privatisation minister maintained that a question should also be raised as to why the IMF and the World Bank do not ask about reducing the spreads in lending and deposit rates of the commercial banks, which were one of the highest in the world. He said the Privatisation Commission was getting only 4% profit on its Rs6 billion deposits placed with the National Bank of Pakistan.
Before 2022, the IMF used to deal with the central bank through the Ministry of Finance. But post amendments in the SBP Act the finance ministry does not know about SBP-IMF dealings, except in cases where the SBP governor himself reveals information to the finance minister or to the ministry.
In 2022, opposition parties had strong concerns over the SBP Act amendments, saying it compromised Pakistan’s economic sovereignty and gave absolute authority to the SBP to take key economic decisions independently.
The absolute autonomy was granted in January 2022 in return for a $1 billion loan tranche. The governor has also been given complete autonomy in his affairs.
In 2021, The Express Tribune had reported that the then central bank management was pushing the finance ministry to accept the amendments in toto or the IMF tranche of $1 billion would be compromised.
The Express Tribune on Monday sent a question to Baqir, who spearheaded SBP autonomy, about Fawad’s statement. But his response could not be received till the filing of the story. Baqir left the country after his three-year tenure ended in 2022.
Fawad also spoke about the need of privatisation and the reforms in Pakistan.
The minister said that under the Privatisation Law it takes about 462 days to complete one privatisation transaction, adding that the interim government would try to privatise the entities that are difficult for a political government due to its consequences.
The interim government is trying to privatise PIA but has not yet succeeded.
Fawad said the government is expected to sign a Financial Advisory Service Agreement (FASA) with the Ernest and Young-led consortium. The cabinet approved the E&Y consortium hiring this month but the agreement signing remains pending and would be finalised this week.
After the signing of the agreement, the advisor would need at least six to nine weeks to prepare a privatisation transaction structure and another 20 to 26 weeks to complete restructuring of the PIA balance sheet.
Fawad revealed that for the past six weeks he was facing difficulties to put together a credible PIA board, as people were reluctant to serve on it for a short term period. He said there were also difficulties in arranging loans for the PIA.
The government had tasked a technical committee to prepare a PIA debt restructuring plan and also arrange Rs15 billion loans for the national carrier within two weeks. There has been no success on this front for the past over one month.
The privatisation minister revealed that people on the state-owned enterprises boards were appointed by the last coalition government based on their political affiliations.
The Privatisation Board was also appointed by the PDM government during its last days and it is widely seen as a political entity having little expertise in the complex matters, according to sources.
Fawad opposed handing over power distribution companies to the provinces, fearing it may result in the worst form of cartelisation in the power sector.
The minister also spoke “very bitterly” about the poor performance of the Federal Board of Revenue (FBR) and set four conditions for any reforms in Pakistan, prominently stating that there should not be any further increase in the size of the government.
“Anything which increases the size of the government is not a reform,” Fawad said in a statement that apparently kills Caretaker Finance Minister Dr Shamshad Akhtar’s proposal to establish a new Tax Policy Division for separating policy from the FBR.
Prime Minister Anwaarul Haq Kakar had not approved Dr Akthar’s restructuring plan and referred the matter to another committee, including Fawad in the FBR restructuring process.
Fawad highlighted the flaws in the country’s taxation system, saying that around 93% of the collected tax revenue is either voluntary or withholding; whereas, only 7% is actually collected by the FBR.
He said in three years revenue board had sent recovery notices to individuals worth Rs600 billion but the actual recovery was less than Rs4 billion from 2013 to 2016. Since 2016, the tax burden on corporate taxpayers has increased by more than 40% on average.
Such a burden has not only contributed to encouraging people to stay out of the tax system but also de-corporatisation.
The public sector reforms should include bureaucratic reforms and taxation system reforms, he said, adding that these two areas are crucial for improving the performance of the state.
Fawad observed that the current state of the public sector was unsustainable.
In three years from 2018-2021, the government spent Rs2.54 trillion in terms of subsidies, grants, and loans to keep commercial SOEs operational. The size of the government has increased by more than three times in the last couple of decades.
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