President Arif Alvi on Saturday returned to parliament a bill aimed at clipping the powers of the chief justice of Pakistan and giving the right to appeal in all suo motu cases with retrospective effect, citing that the proposed legislation is beyond the jurisdiction of the legislative body and is susceptible to challenge as a specious enactment.
“The Supreme Court (Practice and Procedure) Bill, 2023 travels beyond the competence of the parliament and can be assailed as a colourable legislation,” the president said in his reply.
The Senate had on March 30 passed the bill, which aims to deprive the office of the chief justice of Pakistan (CJP) of powers to take suo motu notices in an individual capacity.
The bill was approved by the federal cabinet on March 28, and afterwards, the National Assembly passed it as well after a few amendments suggested by the Standing Committee on Law and Justice. On March 30, it was passed by the Senate.
The amendments proposed in the Supreme Court’s rules have sparked a debate in legal and political circles, with some lawyers criticising it and others saying it was a much-needed bill.
In his detailed reply, which he also posted on Twitter, the president said that 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)”.
Alvi stressed the need for consideration of a aspects after “vetting” the bill.
He underlined that Article 191 of the Constitution empowered the Supreme Court “to make rules regulating the practice and procedure of the Court”.
The president noted that “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.” This indicates that these rules have been validated and adopted by the Constitution itself.
He further stated that “these time-tested Rules are being followed ever since the year 1980 — any tinkering with the same may tantamount to interference with the internal working of the Court, its autonomy and independence.”
Alvi cautioned that any attempt to modify or tamper with these rules could be viewed as interference with the internal workings of the court, which could compromise its autonomy and independence.
He went on to say that the Constitution was founded on the concept of trichotomy of power — three pillars of the state whose domain of power, authority and functions were defined and delineated by the Constitution itself.
“The parliament has also been given the power under Article 67 that states — subject to the Constitution, a house may make rules for regulating its procedure and the conduct of its business.”
“Article 191 states that subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court”.
He explained that Articles 67 & 191 were akin to each other and recognise the autonomy and independence of each other respectively — barring interference of one into the other’s domain.
The head of the state further said the top court is 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,” he highlighted.
He said the competence of the parliament to make laws stemmed from the Constitution itself.
The president highlighted that “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.”
He further explained that “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’.”
However, the president noted that “Entry 55 of Part I of 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.”
The president concluded his observation by questioning the feasibility of the idea and asked, “Can such a purpose be achieved without amending the provisions of relevant Articles of the Constitution?”
He further emphasised that the Constitution is not an ordinary law but an embodiment of fundamental principles, higher law, and law above other laws.
Acting as a worker of the PTI: PM Shehbaz
Reacting to the president’s move, Prime Minister Shehbaz Sharif said it was “most unfortunate”.
“Through his conduct, he has belittled the august affice by acting as a worker of the PTI, one who is beholden to Imran Niazi more than the Constitution and demands of his office,” he tweeted.
Climate Change Minister Senator Sherry Rehman criticised Alvi for following the PTI’s policy.
In a tweet today, she said, “By returning the Supreme Court bill (to the parliament) for review, President Arif Alvi has proved that he is not the country’s president but the PTI’s secretary general even now.”
Saying that Alvi had looked at “parliament’s every decision with the perspective of the PTI”, Rehman highlighted that he had already stated his stance on the matter in an interview before even receiving the said bill.
She added, “He is following his party’s policy, not his constitutional role as the president.”
“The president is saying that this bill is outside the parliament’s authority? He kept running the President House like an ordinance factory for three and a half years — how can he be aware of the parliament’s powers? President, do not teach the parliament legislation,” she said.
Meanwhile, PTI leader Fawad Chaudhry called on the coalition government to “take a breath [and] think” instead of trying to amend laws upon a “few people’s wishes”.
“The government should not make legislation subordinate to a few people’s wishes. After attempts to amend the Supreme Court rules, decreasing the president’s powers by amending the Elections Act (2017) is foolish legislation.”
Addressing the government, he said, “You should take a breath [to] think and make amendments in your politics. No one will accept amendments [made] in such a hurry.”
‘SC authority cannot be changed by any routine legislation’
Barrister Asad Rahim Khan, a columnist and legal commentator, told DawnNewsTV that the issues with the bill were very clear. “The Supreme Court’s authority cannot be [changed] by any routine legislation,” he said. “But the parliamentarians overrode that believing that this law would be correct.”
Barrister Khan also questioned the timing of the legislation, which he said would be endangering the independence of the judiciary and the separation of powers. “Unless the Constitution is amended, such wide-ranging changes cannot be introduced to change the chief justice’s and the Supreme Court’s powers.
“The president did the right thing.”
When asked what options the government has after the bill was returned, Barrister Khan said that the parliamentarians will now discuss the bill in a joint session, and if they send it back to the president for his assent, he has 10 days to sign it. [And if he does not sign it] in the 10-day period, the bill will be deemed to have passed, he added.