NA passes bill to curtail CJP’s suo motu powers

Published March 29, 2023
Federal Minister for Law Azam Tarar speaks in the National Assembly on Wednesday.—NA of Pakistan
Federal Minister for Law Azam Tarar speaks in the National Assembly on Wednesday.—NA of Pakistan

The National Assembly on Wednesday passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the office of the chief justice of Pakistan (CJP) of powers to take suo motu notice in an individual capacity.

The bill, presented by Federal Minister for Law and Justice Azam Nazeer Tarar, was passed hours after the Standing Committee on Law and Justice approved the cabinet’s proposed amendments.

PPP Chairman Bilawal Bhutto Zardari, while addressing the law minister, termed the initiative “too little and too late”, and said that it should be called a “judges empowerment” bill.

When Tarar spoke, he said, “It is being said that a constitutional amendment should be made. I want them to know there is no need for a constitutional amendment.

“They should go and read Article 191 of the Constitution, which empowers the Assembly to legislate. The Supreme Court also made their rules according to the Constitution and law since 1980 and it is written on the preamble as well.”

He said Pakistan has six bar councils and “all of them saluted the House and the law for tabling the bill”.

North Waziristan MNA Mohsin Dawar introduced amendments which were accepted.

Tarar also acknowledged Bilawal’s “too little, too late” remarks but said he believed “there is a right time for everything” and the government demonstrated restraint “until a voice came from within the courts”.

The law minister thanked the members of the NA Standing Committee on Law and Justice for their input on the bill. “This bill was an old demand of the bar councils which said that indiscriminate use of 184(3) should be stopped,” he added.

Tarar said the bill aimed to make apex court proceedings transparent and it also included the right to appeal.

He said that all institutions had to follow laws passed by Parliament. The minister quoted Article 191 of the Constitution, which says that “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.

Leader of the Opposition Raja Riaz praised the government’s efforts in introducing the bill and said it would ensure the freedom of the judiciary and rule of law.

When he spoke, Defence Minister Khawaja Asif insisted that Parliament was not usurping the powers of the Supreme Court but rather legislating as per its constitutional right.

Minister for Religious Affairs and Interfaith Harmony Mufti Abdul Shakoor said Parliament was a sovereign institution and its members had the right to legislate, being representatives of the people.

Shortly after the bill was passed, the session was adjourned.

Meanwhile, the Pakistan Bar Council (PBC) appreciated the federal government for passing the bill. In a statement, Vice Chairman Haroonur Rashid and Executive Committee Chairman Hassan Raza Pasha said that the council had time and again demanded that the criteria for suo motu jurisdiction should be decided.

They also commended that the right of appeal in cases decided under Article 184(3) would now be available, adding that it would be beneficial for litigants and the public. They also appreciated the mechanism for fixing urgent cases within 14 days of them being filed.

Clauses of the bill

Regarding the constitution of benches, the bill passed by the National Assembly today after amendments 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. It added 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.

On matters where the interpretation of the Constitution is required, the bill said the abovementioned committee would compose a bench comprising no less than five apex court judges for the task.

Regarding appeals for any verdict by an apex court bench which exercised Article 184(3)‘s jurisdiction, the bill said that the appeal will lie within 30 days of the bench’s order to a larger SC bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

It added that this right of appeal would also extend retroactively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Supreme Court (Practice and Procedure), Bill 2023, on the condition that the appeal was filed within 30 days of the act’s commencement.

The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, “an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing.”

The bill said that its provisions would have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgement of any court, including the SC and high courts.

Standing committee panel session

Meeting of the Standing Committee on Law and Justice being held under the chairmanship of Chaudhary Mehmood Bashir Virk at the Parliament House on Wednesday. — Twitter/@NA_Committees
Meeting of the Standing Committee on Law and Justice being held under the chairmanship of Chaudhary Mehmood Bashir Virk at the Parliament House on Wednesday. — Twitter/@NA_Committees

The bill — called “Supreme Court (Practice and Procedure) Bill, 2023” — cleared the panel with a few additional amendments. The panel session was chaired by PML-N MNA Bashir Mehmood Virk.

Additional amendments included the right to appeal against the suo motu verdicts taken up to 30 days before the passing of the act were included in the bill along with the amendment that any case that involves interpreting the Constitution will not have a bench with fewer than five judges.

However, the 30-day limit was omitted from the final version of the bill passed by the National Assembly.

Federal Law Minister Azam Nazeer Tarar, Minister of State for Law and Justice Shahadat Awan, PML-N’s Mohsin Ranjha and MNA Ramesh Kumar Vankwani were also among those attending the meeting today.

Tarar laments ‘imprudent use’ of suo-motu power

In the opening remarks of the meeting, Tarar lamented: “For the past year or so, two senior Supreme Court judges have not been seen [included] in any important bench. This should not happen.”

Saying that suo motu authority was used as a “one-man show”, Tarar clarified: “We have seen from every angle that there is no need for a constitutional amendment for this.”

He further said, “Unfortunately, there has not been a full court session of the Supreme Court for the past three years. It is the federal government’s duty to fill the vacuum through legislation.”

The minister added that the government did not want to make such a law that can be challenged later on. “This was an old demand of the stakeholders, upon which legislation is being enacted now,” he said.

Tarar asserted: “Not having the right to appeal against the decision of suo motu is against fundamental rights. To obtain the services of a lawyer of one’s own choice is also everyone’s right.”

He defended the government’s move saying that when “voices from within the Supreme Court also arose, the decision of legislation was taken”.

Virk, the standing committee’s chairman, then asked: “Is there anything in this bill that is against the Constitution?”

At this, PPP MNA Syeda Nafeesa Shah responded: “Parliament members are unanimous but there are some voices arising from outside Parliament. The legislation’s timing is being objected upon. Some people are saying that Article 184(3) [of the Constitution] will need to be amended.”

Detailing the use of suo motu powers, Tarar said: “Article 184(3) was used imprudently. [Former CJP] Iftikhar Chaudhry used the suo motu notice [powers] imprudently.

“After Iftikhar Chaudhry, three chief justices [of Pakistan] did not use this authority. Though, [former CJP] Mian Saqib Nisar exceeded limits.”

At one point during the session, PTI’s Vankwani said that there is an impression that the government is “bulldozing matters” by passing the bill.

He suggested that it would be better to “include the Supreme Court in the process” to which Tarar responded that the apex court had “done nothing on the matter in so many years”.

Responding to Vankwani’s suggestion of taking the apex court’s input on the matter, PML-N’s Virk responded: “Should permission be sought from the cause of the illness?”

Ranjha then said: “Legislation is parliament’s duty [while] the judiciary’s duty is to interpret the law and the Constitution.

“The Parliament should do its job and the Supreme Court should do its own,” he added.

Ranjha further said that “no such thing is being done in which we are crossing a line”. PPP’s Qamar then said, “If the intention is not well, then the right to appeal [the suo motu notice] can be sabotaged.”

The law minister then suggested changing the right to hear an appeal against a suo motu notice to five judges instead of three.

At one point during the session, Ranjha demanded that the act be implemented retroactively, at which PPP MNA Syed Naveed Qamar remarked: “Do not ask for this. There will be allegations that this legislation is being done to provide relief to Nawaz Sharif.”

Subsequently, the amendment to appeal against the suo motu verdicts taken up to 30 days before the passing of the Lawyers’ Protection Act was included in the bill along with the amendment that any case on interpreting the Constitution will not have a bench consisting of less than five judges.

The bill seeking the amendment was then approved by the standing committee, after which Tarar said that the Supreme Court Bar Association is of the view that Article 184(3) of the Constitution should be amended as well.

With additional input from APP



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