“All Pakistanis should be able to donate towards the dam fund,” says Supreme Court. — SC website/File

Opinion split in legal fraternity after bill clipping CJP’s powers tabled in NA

Asad Rahim calls the proposed amendments "clownish", whereas Salahuddin Ahmed deems them “excellent and much needed”.
Published March 28, 2023

After a bill aimed at curtailing the chief justice of Pakistan’s (CJP) powers to take suo motu notices and constituting benches of the Supreme Court (SC) was approved by the federal cabinet and presented in the National Assembly on Tuesday, the opinion in the legal fraternity was split.

The cabinet summary for the Supreme Court (Practice and Procedure) Bill, 2023, states that “every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges,” adding that “the decisions of the committee would be taken by a majority.”

Regarding exercising the apex court’s original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the abovementioned committee.

“If the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.

Here is what the legal eagles had to say about the bill’s proposed amendments to curtail the top court’s powers.

Asad Rahim

Barrister Asad Rahim Khan told Dawn.com that the government’s legislation was 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 both the independence of the judiciary as well as the principle of trichotomy of powers,” he said.

Salahuddin Ahmed

Terming the amendments as “excellent and much-needed”, Lawyer Salahuddin Ahmed said the proposed changes were in line with what all the bar associations had been demanding.

Ahmed said the bill was in line with the suggestions of the bars regarding the CJP’s “absolute discretion to constitute benches for well over a decade now”.

“In fact, even CJP Asif Khosa had proposed regulating the power of suo motu along similar lines but unfortunately the Supreme Court did not frame rules in this regard,” he said. “As a result, the Parliament has had to act in the exercise of its law-making powers under Article 191 of the Constitution.”

Ahmed said the right of one appeal against decisions made by the Supreme Court in its original jurisdiction under Article 184 (3) is also a long-standing demand of bars.

“Another excellent part of the bill is the stipulation that urgent matters will be fixed for hearing within two weeks. Presently, urgent applications can remain pending before CJ for months at end,” he added.

Abdul Moiz Jaferii

Lawyer Abdul Moiz Jaferii said the proposed act sought to override the relevant chapter of the Supreme Court rules which have been in place since 1980 and termed it a “great solution to suo motu engineering and unilateral bench fixing by the CJP that should have come from the court itself.”

“Article 191 of the constitution makes very it clear that the Supreme Court can make rules regulating the practice and procedures of the court, but this power is subject to the constitution and the law.”

He added that an ordinary piece of legislation can effectively fill the void which exists in the rules and better structure the discretion that vests in the chief justice with regard to the formation of benches and the fixation of cases before them as well as the right of appeal for suo moto decisions.

Muhammad Ahmad Pansota

Barrister Muhammad Ahmad Pansota said that while he supported the reform, the manner in which it was being conducted was “improper and violative” of the Constitution.

“I am all for reform in the power of the CJP to take suo motu action. It must be structured, however, the process being adopted by the government in curtailing the suo motu power through subordinate legislation is improper and violative of Articles 238/239 of the Constitution,” he said.

Hassan Niazi

Lawyer Hassan Niazi disagreed with Barrister Pansota’s take, saying the apex court’s power was being “structured instead of curtailed”.

“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,” he said.

He said the parliament was “well within its rights” to regulate how the CJP’s powers are to be exercised, adding that it was a “longstanding” demand which should be welcomed.

Salaar Khan

Lawyer and columnist Salaar Khan said that while regulating the apex court’s procedure did not necessarily require a constitutional amendment, it was possible that any law passed would be struck down by the Supreme Court for “violating the promised independence of the judiciary” since laws were still subject to the Constitution.

“One can even imagine the SC will consider such a law, or laws, within the present context (the government’s design to delay elections, in violation of the Constitution). As such, the SC may even fashion a way to bring that to the fore,” he explained.

He recalled that there were many calls for reforms over the years, including from within the apex court and “this is not the first time this issue has been raised.”

He also pointed out that the issue of the provincial elections could not be separated from the entire matter.

Basil Nabi Malik

Advocate Basil Malik said Article 191 of the Constitution allowed the appropriate legislature to regulate practices and procedure of the Supreme Court.

“As such, certain subject matters of the bill, such as regulating bench fixing and exercise of suo motu powers, appear to be within its competence via a simple majority,” he said.

“However, considering that the Constitution already delineates the Supreme Court’s appellate powers, it is arguable as to whether the parliament, through a simple majority, can carve out a fresh appellate jurisdiction in the Supreme Court against an order of that very Supreme Court.”