Ignoring calls to stop interfering in the domain of parliament, Pakistan’s Supreme Court on Thursday stopped operationalisation of a bill aimed at clipping the powers of the chief justice.
The lawmakers on Monday passed for the second time the Supreme Court (Practice and Procedure) Bill 2023 to dilute chief justice’s power to take suo motu action and form a panel of judges for hearing of cases.
An eight-member bench headed by Chief Justice Umar Ata Bandial held the first hearing of at least three petitions challenging the bill which is yet to become a law because President Arif Alvi has not endorsed it. However, it would become a law even without Alvi’s signature next week after passing of ten days since it was passed by the parliament.
The bench observed that prima facie the proposed law infringed the powers of the apex court to frame its own rules and it merits a hearing by the court.
The court in its order after hearing stated that any intrusion in its practice and the procedure, even on the most tentative of assessments, would appear to be ‘inimical to the independence of the judiciary, no matter how innocuous, benign or even desirable the regulation may facially appear to be’.
“It is therefore hereby directed and ordered as follows. The moment that the bill receives the assent of the president or (as the case may be) it is deemed that such assent has been given, then from that very moment onwards and till further orders, the act that comes into being shall not have, take or be given any effect nor be acted upon in any manner,” the court stated.
But what is the contentious bill? News18 explains:
The Bill includes three crucial provisions: the decision of what suo motu cases can be heard will be made by a committee made up of the Chief Justice and the two senior most judges rather than just the Chief Justice; the committee will also choose the benches to hear these cases rather than the top judge; any case involving constitutional interpretation will not have a bench with fewer than five judges; and decisions made in such cases will be subject to appeal.
In Article 184 of the Pakistani Constitution, “Original Jurisdiction of Supreme Court” is defined. “If it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights” is involved, suo motu cases can be taken up by the SC under Article 184 (3), according to a report by the Indian Express. As of now, the Chief Justice had sole discretion over all proceedings under this.
“In the past it has been observed that suo motu notice had been taken on petty matters like lack of parking space outside a hospital, submerging of a street in rainwater, or recovery of a bottle from an accused. Therefore, it is the need of the hour to form a mechanism to ensure transparency,” Law Minister Azam Nazeer Tarar, speaking in the National Assembly, was quoted as saying by Pakistani daily Dawn.
“Presently, there is no right of appeal in suo motu cases but in the proposed Bill we have given the right to the accused to file intra-court appeal within 30 days,” he added.
Importantly, this right is also retroactively enforceable, and parties who have been wronged may file a lawsuit “within 30 days of the effective date of this Act.” This has the potential to trigger a wide range of laws; in the 2017 Panama Papers case, Article 184(3) even barred Nawaz Sharif from holding public office, as per the Indian Express report.
One further important clause states that “an application pleading urgency or seeking interim relief, filed in a cause, appeal, or matter, shall be fixed for hearing within fourteen days from the date of its filing.”
What do legal experts say
Some legal experts believe that while the government’s planned modifications to reduce the Supreme Court’s authority are desirable, the way the parliament is going about doing so is suspect, according to a report by Al Jazeera.
“What the government is attempting to do is something that ought to have been done years ago.” A constitutional expert and lawyer from Lahore named Abuzar Salman Niazi told Al Jazeera that the way they are going about it is questionable.
According to Niazi, the majority of the government’s measures are constitutional modifications, which call for a two-thirds majority in the parliament, which the Sharif administration does not have.
Additionally, he questioned the bill’s timing. He declared, “It seems they are only doing this to put pressure on the chief justice of Pakistan.”
“The independence of the judiciary, which is a fundamental component of our constitution, might be at odds with a straightforward act of parliament regulating the judiciary with regard to procedural and substantive legislation. If reviewed or contested in court, the courts might invalidate it,” he had added.
But Salaar Khan, a constitutional expert and lawyer based in Islamabad, told Al Jazeera that he did not think the proposed amendment would limit the Supreme Court’s authority.
He said the law just concerns power restructuring, and that taking suo motu notices was now the unique prerogative of the court’s chief justice. “Since the Supreme Court is defined to include more than simply the chief justice, one can contend that the proposal seeks to increase the involvement of other judges as well,” he told the publication.
What Triggered this Court-govt Clash?
Imran Khan’s ouster from office as prime minister by a parliamentary vote of confidence in April of last year served as the catalyst for the conflict, explained the Al Jazeera report.
Khan, the leader of the Pakistan Tehreek-e-Insaf (PTI) party, started a nationwide campaign to demand early elections for the nation’s legislature, which are currently slated for later this year.
He then decided to dissolve the provincial assemblies in the provinces of Punjab and Khyber Pakhtunkhwa in January after the administration rejected his petition. Given that Pakistan traditionally holds both provincial and national elections at the same time, the action was part of Khan’s effort to force the elections.
However, the constitution of Pakistan mandates that elections be held 90 days after a legislative assembly is dissolved. But when the ECP failed to release an election timetable, a standoff resulted, prompting President Arif Alvi, a supporter of Khan’s PTI, to unilaterally set April 9 as the election date in the two provinces.
Three days later, on February 23, Pakistan’s Chief Justice Umar Ata Bandial decided to take a suo motu notice of the matter and convene a hearing on his own as observers questioned the validity of Alvi’s pronouncement.
The Supreme Court ordered the ECP to uphold its constitutional duty and declare an election schedule for the provinces of Punjab and Khyber Pakhtunkhwa on March 1 in a 3-2 decision after four judges recused themselves from the original nine-judge bench convened to hear the case.
The ECP announced that the election in Punjab province would take place on April 30 two days later, on March 3.
Three days later, on February 23, Pakistan’s Chief Justice Umar Ata Bandial decided to take a suo motu notice of the matter and convene a hearing on his own as observers questioned the validity of Alvi’s pronouncement.
The Supreme Court ordered the ECP to uphold its constitutional duty and declare an election schedule for the provinces of Punjab and Khyber Pakhtunkhwa on March 1 in a 3-2 decision after four judges recused themselves from the original nine-judge bench convened to hear the case.
The ECP announced that the election in Punjab province would take place on April 30 two days later, on March 3.
However, the election commission cancelled its plan last week, claiming that security and financial difficulties made it impossible to hold the election in April. It declared October 8 as the new Punjab election date.
The Supreme Court is currently reviewing whether the ECP’s action is permissible after being contacted by an angry PTI. This compelled the administration to introduce a resolution that targeted the court directly, the report by Al Jazeera said.
Now What Has the Court Said?
The SC bench also issued notices to the political parties, the federal government, Attorney General, Pakistan Bar Council (PBC), the Supreme Court Bar Association of Pakistan and other respondents in the case.
Later, the proceedings were adjourned till May 2.
Earlier in the day, representatives of the political parties which are part of the coalition government criticised the court for scheduling the hearing of petitions against the bill. Addressing a press conference they demanded the stop hearing.
The parties also showed strong reservations against the members of the bench.
Separately, the parliament passed a resolution calling for the dissolution of the eight-judge larger bench. The resolution tabled by the Pakistan Peoples Party lawmaker Agha Rafiullah was approved by a majority vote.
According to the resolution, the lower house rejected the eight-member bench, which excluded two senior judges of the apex court. It argued that constitution-making is the sole responsibility of the Parliament and that the house views the decision of the apex court with “concern”.
It expressed concern over the non-inclusion of senior judges in the larger bench.
With inputs from pti
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