CJP powers bill: govt's full court plea fails to impress Supreme Court

Supreme Court defers hearing on petitions for three weeks

ISLAMABAD (Dunya News) - The Supreme Court of Pakistan on Monday deferred for three weeks hearing on petitions filed against the Supreme Court (Practice and Procedure) Act, 2023. 

An eight-member bench, comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyad Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed, conducted hearing on the petitions.  

At the start of the hearing, Attorney General Mansoor Awan said an application had been filed to constitute a full court bench. He said the Pakistan Muslim League-Nawaz (PML-N) had submitted this application to court for formation of a full court.

Justice Ijazul Ahsan remarked that the application had not been assigned any registration number as yet.

The chief justice inquired from the attorney general whether they had submitted the documents sought by the court. 

Also Read: SC's reforms case: Govt files petition in SC for full bench

The attorney general replied that the record of the parliamentary proceedings was expected to be available by tomorrow (Tuesday). He said the speaker's office had been contacted in this regard - both formally and informally. 

He further said the court had declared that the basic structure of the constitution existed and the independence of the judiciary was the basic component of the constitution. The attorney general said the constitution of benches and the matter of appeals had been settled in law. 

The right to change of counsel had also been given in the judicial reforms bill. He said the matters decided in the law were administrative in nature and the rules of the Supreme Court were framed by the full court. 

Attorney General Mansoor Awan said only the full court could amend the Supreme Court rules. He said cases relating to judiciary's independence and rules should be heard by the full court. Mr Awan said the law would also apply directly to judges who were not hearing the case.

Justice Ijazul Ahsan remarked that the question was of legislative powers, and not of amending the rules. Cases relating to legislative power were routinely being heard by various benches, he further remarked. 

Justice Mazahir Naqvi inquired whether such legislation had been passed in the past. The attorney general replied that until 1992, president's permission was required to frame the rules. Justice Mazahir inquired how could such a legislation be made in the presence of Article 91? 

Justice Ayesha Malik said any bench of the Supreme Court could hear any case.  

It should be noted that the Supreme Court (Practice and Procedure) Bill 2023 related to judicial reforms had been approved by parliament on April 21 last and after the constitutional period of re-approval by the president had passed, it had become an act of parliament.

During the hearing held on May 2 this month, the Supreme Court, while rejecting the request to form a full court bench to hear the said case and remove Justice Mazahir Naqvi from the bench, had called for the record of the parliamentary proceedings. 

Advocate Muhammad Shafay Munir, Raja Amer Khan, Chaudhry Ghulam Hussain and others had filed identical petitions under Article 184(3) of the Constitution.

Article 184(3) of the Constitution sets out the SC’s original jurisdiction, and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.

The bill, titled the Supreme Court (Practice and Procedure) Bill 2023, is aimed at curtailing the suo motu powers of the office of the CJP in an individual capacity.

It was initially passed by both houses of parliament and sent to the president for his assent. However, the president had sent it back, saying that the proposed law travelled “beyond the competence of parliament”. The bill was subsequently adopted by a joint session of the parliament — albeit with some amendments.

However, while hearing the set of three petitions challenging the bill, the eight-member apex court bench on April 13 ruled that after the bill received either the president’s assent or it was deemed to have been given, the act that “comes into being shall not have, take or be given any effect nor be acted upon in any manner” — halting the law’s implementation when the bill came into effect.

The ruling coalition government was swift to reject the apex court’s ruling. President Dr Arif Alvi again refused to give his assent to the bill on April 19 and sent it back to parliament, following which it technically became an act of parliament on April 21.

The bill states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP.

The proposed law also states that every cause, matter, or appeal before the apex court would be heard and disposed of by a bench, constituted by a committee made up of the chief justice and the two senior-most judges.

The legislation also includes the right to file an appeal within 30 days of the judgement in a suo motu case and that any case involving constitutional interpretation will not have a bench of fewer than five judges.

The bill seeks to allow former prime minister Nawaz Sharif and other parliamentarians disqualified by the Supreme Court under suo motu powers (such as Jahangir Tareen) to appeal their disqualification within 30 days of the law’s enactment. Also Read: Supreme Court to safeguard constitution on elections' plea come what may: CJP Bandial

Chief Justice of Pakistan Umar Ata Bandial said on Friday that the apex court would proceed in line with the constitution and would not sit idle on the May 14 election issue if the dialogue between the government and the PTI failed. The Supreme Court resumed the hearing on the plea regarding holding of general elections for the National Assembly and provincial assemblies in one go after the coalition government and main opposition party PTI sat together for three days and tried to talk out the issue.