In an unexpected development, the federal government decided to review the Supreme Court (Practice and Procedure) Bill, 2023, which curtailed the top judge’s powers to initiate suo motu proceedings and constitute benches on his own.
During a hearing of pleas against the SC Law, Attorney General of Pakistan Mansoor Usman Awan told Chief Justice Umar Ata Bandial that certain provisions within the law exhibit overlapping aspects and the government to review Supreme Court (Practice and Procedure) Bill, 2023.
An eight-judge Supreme Court bench, headed by CJP Bandial comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi, and Justice Shahid Waheed heard pleas.
Today’s hearing
At the outset of the hearing, AGP told the court that the law pertaining to the Chief Justice’s suo motu powers encompassed various other aspects as well.
Mr Awan noted the similarities between these laws, particularly in sections concerning review and the engagement of legal representation.
AGP Awan highlighted the comprehensive nature of the Supreme Court (Practice & Procedure) Act, 2023, which included provisions addressing internal affairs within the court. He stressed the need to determine which of the two legislations should be relied upon, urging the court to find a resolution regarding the overlapping provisions.
In response, Chief Justice Umar Ata Bandial expressed satisfaction that the government and Parliament were undertaking amendments to address the overlapping laws.
He emphasized the importance of consulting with the Supreme Court when formulating legislation pertaining to the judiciary. CJP Bandial specifically mentioned the similarity between sections 4 and 6 in the law regarding the review of judgments.
CJP Bandial suggested that Parliament should be requested to harmonize both laws, welcoming the proposal put forth by the Attorney General.
AGP Awan acknowledged the need for the Supreme Court’s consultation during the amendment process, especially concerning administrative matters. He assured that going forward, the court’s advice would be sought on various matters in addition to legislation.
Advocate Imtiaz Siddiqui approached the rostrum during the hearing and recalled the court’s previous request for the record of parliamentary proceedings. Responding to this, Chief Justice Bandial informed the court that despite the newspaper’s report stating otherwise, they had obtained the necessary record from the Parliament’s website.
Justice Mazhar commented on the importance of resolving the issue of similar laws, stating that hearing petitions regarding the full court would be futile if the laws were indeed similar.
AGP Awan suggested that the matter could be referred to Parliament for discussion, but CJP Bandial interjected, indicating that they would address the issue when the government or Parliament provided advice on the matter.
The top judge instructed Awan to seek instructions from the government and adjourned the hearing until the following week. He assured the lawyers present that an appropriate order would be issued later that day.
The Chief Justice also took the opportunity to apologize to the lawyers who had traveled from Sindh and other areas, expressing hope that they would enjoy the pleasant weather in the capital.
The law
The Supreme Court (Practice and Procedure) Bill 2023, aimed at limiting the powers of the Chief Justice of Pakistan (CJP) to take suo motu notice, has faced obstacles in its journey to becoming law.
While initially passed by both houses of parliament, the bill was sent back by the president for being beyond parliament’s competence. Later, it was adopted by a joint session of parliament, albeit with some amendments.
However, a recent ruling by an eight-member apex court bench has put the law’s implementation on hold, stating that it shall not take effect in any manner. The ruling came during a hearing of three petitions challenging the bill. It remains to be seen whether the bill will eventually become law or not.
Pleas
The three petitions were filed under Article 184(3) of the Constitution by Advocate Muhammad Shafay Munir, Raja Amer Khan, Chaudhry Ghulam Hussain and others.
The petitioners argue that the bill is an act tainted with mala fide and urge the court to strike it down after declaring it to be without lawful authority and of no legal effect.
The federal government, law secretaries, as well as principal secretaries to the premier and president have been named as respondents in the case. The petitioners have requested the court to suspend the bill during the pendency of the petition, with a directive for President Alvi not to assent to the bill so that it could not become an act of parliament.
According to the petitions, the federal government cannot frame any law that seeks to interfere or regulate the functioning of the apex court or the powers exercised by it or its judges, including the Chief Justice of Pakistan (CJP), under the Constitution. The petitions contend that the impugned bill is ultra vires and an unconstitutional measure, in sheer violation of the constitutional mandate.
The petitions emphasize that the independence of the judiciary and of each of the judges, including the CJP, is declared as an aim enunciated in the preamble to the Constitution and is a substantive part of the Constitution. It is argued that the SC, led by the CJP with its judges, must be independent of all executive or legislative transgressions to perform their constitutional obligations in providing justice to the people of Pakistan.
The petitions further argue that it is unimaginable that the office of CJP, with respect to constitutional powers, could be allowed to be regulated by the parliament. The independence of the judicial organ of the state, the judges, and the CJP must not be compromised, as provided in the Constitution.
Overall, the petitions seek to protect the independence and functioning of the judiciary in Pakistan, arguing that any attempt to regulate or interfere with its powers and functions is a violation of the Constitution and the fundamental principles of justice.
