ISLAMABAD , April 13, 2023: The parties in the coalition government on Thursday rejected the setting up of an eight-member bench of the Supreme Court to take up pleas in connection with the Supreme Court (Practice and Procedure) Bill 2023.
In the joint statement, the ruling parties rejected the move to form a “controversial” bench on the bill. The statement said such a move had never been seen before in the history of Pakistan and the judiciary.
The move comes a couple of hours before the eight-member bench are going to take up pleas against the bill curtailing CJP’s powers.
The statement further said the coalition partners vowed to resist attempts to take away parliament’s authority and to interfere in its constitutional scope.
Headed by the Chief Justice an eight-judge Supreme Court bench will take up a set of three petitions challenging a pending legislation meant to clip CJP powers.
The top court on Wednesday had fixed pleas against Supreme Court (Practice and Procedure) Bill 2023 for hearing on April 13 (Thursday).
The eight-member bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Mazahir Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hassan Azhar Rizvi, and Justice Shahid Waheed would hear the pleas at 11:30am.
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.
Terming the development “unprecedented”, the PDM said that this move is equivalent to sabotaging the credibility of the country’s highest court, making the constitutional process of justice “meaningless”.
“The division in the Supreme Court has reaffirmed the stance of the coalition parties and that the ruling alliance considers this as an “attack” on the parliament and its authority,” the statement further read.
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.”
— Pakistan Bar Council gives protest call —
The Pakistan Bar Council (PBC) announced countrywide boycott of the courts today, saying the SC (Practice & Procedure) Bill was taken up in haste and assailed the formation of “a one-sided and controversial bench” to take up the matter.
In a statement, lawyer leaders termed the step an attempt to divide the highest court in the land and agreed that never in history had a law enacted by parliament been prevented from being implemented.
They said that the legislation conforms to the demands of bar councils and associations across the country, and any attempts to prevent its passage would be opposed.
The council office-bearers said its representatives from across the country would meet on April 17 to consider the ‘disputed’ bill.