Schism in legal eagles over NA legislation moderating CJP's suo motu powers
Pakistan
NA passed the bill amid opposition's 37 MNAs against their 180
(Web Desk) - As the National Assembly unanimously passed the Supreme Court (Practice and Procedure) Bill 2023 on Wednesday, legal eagles came forward with diversified opinions with some finding it a restructuring of the apex court’s procedure and practice while others calling it an attempt to curb the Chief Justice of Pakistan’s (CJP) powers.
The bill comes in the wake of the dissenting notes written by two SC judges, Justice Mansoor Ali Shah and Justice Jamal Ahmad Khan Mandokhail, of a five-member bench hearing the suo motu notice taken by CJP Umar Ata Bandial on holding elections in Punjab and Khyber Pakhtunkhwa (KP). Apex court had, earlier, ordered the Election Commission of Pakistan (ECP) to hold elections within ninety days of the dissolution of Punjab (dissolved on Jan 14) and KP (dissolved on Jan 18) assemblies.
Read Also: Election case mired in controversy as two judges at odds over suo motu verdict
However, the ECP later postponed the election in Punjab until Oct 8 which the PTI saw as contempt of the court and moved the SC to uphold the constitution. Meanwhile, the federal cabinet approved the bill proposing amendments to the CJP’s powers to take suo motu notice. The amendments pertain to the right of appeal against the verdict issued in a suo motu notice within 30 days as well as trickling down the power from CJP to other SC judges for the constitution of the bench hearing the case.
The haste in which the federal government passed the bill in the NA raises eyebrows on the underlying intentions but since the bill had passed now, let’s have a look at the legal fraternity’s opinions.
Lawyer Saad Rasool said Article 184(3) granting CJP the power to take suo motu notice had been the subject of debate since Iftikhar Chaudhry was the CJP adding that there must be a procedure to appeal against the suo motu and to constitute a bench responsible for hearing the case. “It was being hoped that only the government would not take the step but a consensus would be established between the judiciary and the legislature”, he added.
In the light of his arguments, Mr Rasool sees it as an interference with judicial matters but also stands with the argument that there must be a defined procedure rather than an arbitrary method to appeal against the verdict. “The SC had declared the procedure unconstitutional in the past”, he added. He concluded it with saying that the court must endeavor to end the glaring division within its ranks to avert split between the judiciary and the parliament.
Advocate Salman Raja said the one-man show observation was for the future. “There should be rules regarding the formation of benches, if the full Supreme Court can agree on what the rules should be", he added.
Barrister Muhammad Ahmad Pansota wrote on Twitter, “I am all for reform in the power of the CJP to take suo moto action. It must be structured, however, the process being adopted by the governent of Pakistan in curtailing the suo moto power through subordinate legislation is improper and violative of Articles 238/239 of the Constitution.”
— Muhammad Ahmad Pansota (@Pansota1) March 28, 2023
Lawyer Hassan Niazi disagreed with Mr Pansota writing, “The power is not being curtailed, it is being structured. The amendment does not appear to take away the SC’s original jurisdiction, it merely describes how it will be exercised. That doesn’t require a constitutional amendment.”
— Hassan A. Niazi (@Hassan_A_Niazi) March 28, 2023
“Hard to see how the SC can hide behind the text of the Constitution when 184(3) never even mentions the suo motu power. As for the power to form benches, that flows from the SC Rules which are framed as ‘subject to the law’. "They can therefore be amended through legislation”, he added.
Another lawyer Abdul Moeez Jafri sees it as a “great solution to suo motu engineering” writing, “This is a great solution to suo moto engineering and unilateral bench fixing by the CJP that should have come from the court itself. It is not an overshot, and I don’t see how the Supreme Court will rip it apart without ripping itself apart”.
— Abdul Moiz Jaferii (@Jaferii) March 28, 2023
Barrister Asad Rahim termed the move a “clownish attempt”. He wrote, “This is a clownish attempt – in the same vein as Israel’s Netanyahu – to declaw the one institution standing in the way of the Constitution’s violation. It can’t be done through ordinary legislation, and it attacks the independence of the judiciary”.
— Asad Rahim Khan (@AsadRahim) March 28, 2023
