Supreme Court stops implementation of bill curtailing CJP's powers

Adjourns the hearing until May 2

ISLAMABAD (Dunya News) – The Supreme Court (SC) on Thursday stopped the implementation of the Supreme Court (Paractice and Procedure) Bill 2023, aimed at curtailing Chief Justice of Pakistan (CJP)'s power to take suo motu notice, until further orders.

An eight-member bench of the apex court, headed by CJP Umar Ata Bandial, issued an eight-page order in the case against the bill, wherein four petitions had been filed by Advocate Khawaja Tariq Rahim and others. The written order stated that the bill would not be implemented, regardless of whether President Dr Arif Alvi signed it or not.

Later, the court adjourend the hearing until May 2.

CJP Bandial observed that the apex court held the parliament in high esteem. 

Earlier, the court had issued notices to the political parties, the federal government, Attorney General for Pakistan Mansoor Awan, the Pakistan Bar Council, the Supreme Court Bar Association and other respondents in the case. 

An eight-member larger bench headed by Chief Justice of Pakistan Umar Ata Bandial is hearing the plea. The bench includes Justice Ijaz-ul-Ahsan, Justice Muneeb Akhtar, Justice Mazahir Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi and Justice Shahid Waheed.

At the outset of the hearing, Advocate Imtiaz Siddiqui, the counsel for petitioner Raja Amir, argued that the case was of prime importance in the present scenario. After the Qasim Suri case, there has been a lot of political division. Since the restoration of the National Assembly, political crisis deepened, he added.

The Supreme Court had to take suo motu notice as the federal government and the Election Commission showed no willingness to conduct the elections and order the commission to conduct the polls, the counsel continued.

Advocate Siddiqui said that on April 3, the court ordered to hold elections again. After the court order more problems were created. Ministers and parliamentarians criticised judges.

The counsel submitted that the proposed legislation interfered with the independence of the judiciary. After the approval of both houses, the bill was sent to the president who sent it back after raising objections. No consideration was given to the president's objections due to political differences, he submitted.

Under Article 191, the Supreme Court is authorised to make its own rules.

The counsel said that the Supreme Court could invalidate a bill passed by parliament. The Supreme Court is nothing without the chief justice. Limiting the powers of the chief justice will affect the independence of the judiciary.

Advocate Siddiqui said the powers of the chief justice and judges could not be curtailed. The office of the chief justice could not be used by any other judge, even for a moment. How can the office of the chief justice be shared with two senior judges?

He said that the Supreme Court has declared in the Qasim Suri case that the actions of the parliament can also be reviewed. In the past, the court has declared that a bill cannot be stopped from passing. If a bill is passed, the court can review it.

The lawyer said there are judicial precedents that a proposed act can be reviewed even before the assent of the president.

The court is the guardian of the constitution and empowered to administer justice, he said and added that institutions including the parliament are bound to obey the orders of the Supreme Court.

There are rules of the Supreme Court under Article 191 which parliament cannot amend, he submitted

CJP Bandial asked him that according to him the independence of the judiciary is a fundamental right which is fully protected by the constitution, like the parliament and the executive.

Advocate Siddiqui said that the president is a symbol of the unity of the state of Pakistan. The office of the president is not merely ceremonial. The president is the force that holds all the units together. He can direct to re-examine the bill. A bill cannot be amended after the assembly passes it.

After the passage of the bill, the legislative process is considered complete.

He said the order of the court in the present case will not interfere with the pending legislation. Parliament has completed its work and sent the bill to the president, so it cannot be considered intervention of the court.

The bill grants right to appeal against the Supreme Court ruling. If a case is heard by a 10-member bench, how can an appeal be filed? Can junior judges hear appeals against the decision of senior judges?, the lawyer questioned.

Chief Justice Omar Atta Bandyal said that all the judges of the court are equal.

Siddiqui said that the reference in the Justice Faiz Isa case was in the Supreme Judicial Council, senior judges were hearing the reference and the Supreme Court declared the proceedings unconstitutional before the reference.

In the present case the steps prior to the passage of the bill should also be examined, he argued.

Justice Muneeb Akhtar asked Advocate Siddiqui what he wanted from the court in the present case. He requested that the court to declare the bill unconstitutional. The court must prevent the proposed bill from becoming law pending the decision.

The court issued notices to the parties in the petitions. It also issued notices to Pakistan Bar Council, Supreme Court Bar and Attorney General for assistance. The court summoned the president and the prime minister through the principal secretary.

Later, the court had adjourned the hearing till next week. 

Earlier proceedings 

Earlier on Wednesday, the top court fixed pleas against Supreme Court (Practice and Procedure) Bill 2023 for hearing on April 13 (Thursday). The bill had, earlier, been passed by both houses of the parliament for the second time after amendments proposed by PML-N MNA Shiza Fatima and was again sent to President Dr Arif Alvi for assent.

Federal Law Minister Azam Nazir Tarar had said the opposition showed ignorance over the matter adding that the president left a negative comment on the parliament’s prerogative to legislate. “Mr Alvi should have avoided this,” he added.

The bill aims at curtailing the powers of CJP regarding taking suo motu notice under clause (3) of Article 184 of the constitution. If the bill was signed into law by the president, it would give the power of taking suo motu notice to a three-member committee comprising senior SC judges including the CJP.

It further stated that any matter invoking the exercise of original jurisdiction under clause 3 of Article 184 of the constitution should first be placed before the committee for examination, and if the committee reckoned that if a question of public importance concerning enforcement of any of the fundamental rights was involved, it should constitute a bench comprising not less than three judges of the apex court that might include the members of the committee for adjudication of the matter.

As per the constitution, if the president did not sign the bill within ten days, assent would be deemed to have been given.

On April 8, President Alvi had returned the bill for reconsideration to parliament, stating that the legislation “prima-facie travels beyond the competence of the parliament and can be assailed as a colourable legislation”.

The president had returned the bill unsigned as per the provisions of Article 75 of the constitution. The president said he thought it fit and proper to return the Bill, in accordance with the constitution, with the request for reconsideration in order to meet the scrutiny about its validity (if assailed in the Court of Law).

The president said several aspects were required for due consideration. Firstly, “Article 191 of the constitution empowers the Supreme Court ‘to make rules regulating the practice and procedure of the Court’. Under such enabling provisions of the constitution, the Supreme Court Rules 1980 have been made and in force duly validated – and adopted by the constitution itself. These time-tested Rules are being followed ever since the year 1980 – any tinkering with the same may be tantamount to interfering with the internal working of the court, its autonomy, and independence,” he highlighted.

He said the constitution was founded on the concept of trichotomy of power – three pillars of the State whose domain of power, authority and functions are defined and delineated by the constitution itself.

He also cited Article 67 and Article 191 of the constitution which define the limits of parliament and the Supreme Court of Pakistan.

Article 67 states that “subject to the constitution, a House may make rules for regulating its procedure and the conduct of its business….” while Article 191 states that “subject to the constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.

The president said, “Articles 67 and 191 are akin to each other and recognize the autonomy and independence of each other respectively – barring interference of one into the other’s domain”.

He said the top court was an independent institution as visualised by the founding fathers that in the state of Pakistan ‘independence of judiciary shall be fully secured’. With such an objective in view, Article 191 was incorporated and the Supreme Court was kept out of the law-making authority of the parliament. The competence of parliament to make laws stems from the constitution itself, he highlighted.

“Article 70 relates to ‘introduction and passing of Bills’ with respect to any matter in the Federal Legislative List – enumerated in the Fourth Schedule of the constitution. Followed and further affirmed are the provisions of Article 142(a) that Parliament can make laws ‘with respect to any matter in the Federal Legislative List’. Entry 55 of Part I of the Fourth Schedule while empowering the Parliament to make laws in respect of ‘jurisdiction and powers of all courts except the Supreme Court’ especially excluded the Supreme Court,” Mr Alvi said.

Thus, the Bill prima-facie travels beyond the competence of the parliament and can be assailed as a colourable legislation.

“The constitution confers the SC with Appellate Jurisdiction (Articles 185 – 212), Advisory (Article 186), Review (Article 186), (Article 186) and Original Jurisdiction (Article 184). Article 184(3), the focus of the Bill relates to the original jurisdiction of the Court — providing for the mode and manner for invoking it and providing Appeal. The idea may be laudable but can such a purpose be achieved without amending the provisions of relevant Articles of the constitution — established law is that the provisions of the constitution cannot be amended by an ordinary law as the constitution is a higher law — father of laws — a constitution is not an ordinary law, but rather an embodiment of fundamental principles, higher law, and law above other laws.”