An eight-member larger bench of the Supreme Court (SC) will take up three petitions challenging a bill seeking to curtail the powers of the chief justice of Pakistan (CJP) tomorrow (Thursday) at 11:30am.
The bill, titled the Supreme Court (Practice and Procedure) Bill 2023, is aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity.
It was initially passed by both houses of parliament and sent to the president for his assent. However, the president had sent it back, saying that the proposed law travelled “beyond the competence of parliament”.
On Monday, the bill was passed by a joint sitting of parliament with certain amendments, amid a noisy protest from PTI lawmakers.
According to the roster issued on Wednesday, the eight-member bench will comprise CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyad Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.
Notably missing from the bench are Justices Qazi Faez Isa and Justice Aminuddin Khan who had earlier ruled that the CJP did not have the power to make special benches or decide its members and ordered the postponement of all suo motu matters. The order was later recalled by a six-member larger bench. Justice Isa, in a judicial note, later said that the bench did not “constitute a constitutional court”.
The cause list issued today showed that three petitions have been filed under Article 184(3) of the Constitution by Advocate Muhammad Shafay Munir, Raja Amer Khan, Chaudhry Ghulam Hussain and others.
Article 184(3) of the Constitution sets out the SC’s original jurisdiction, and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
The petition filed by Advocate Munir insisted that the plea had been filed to safeguard and secure the Constitution and independence of the judiciary.
He contended that the petitioner believed in the supremacy of the Constitution, the rule of law, and independence of the judiciary and had always strived and struggled to protect the Constitution, independence of the judiciary and fundamental rights guaranteed under the Constitution.
The respondents named in the petition included the federal government through the secretaries of law, Senate and National Assembly.
After the pleas were fixed for hearing, PTI leader Fawad Chaudhry tweeted: “Now that the chief justice of Pakistan has formed a bench comprising a majority of judges of the Supreme Court, people who considered a larger bench a solution to problems will hopefully be satisfied.”
Meanwhile, Special Assistant to the Prime Minister on Interior and PML-N leader Attaullah Tarar said, “Fixing a law that has not been enforced yet for hearing before a like-minded bench at a lightning speed is an insult to parliament.”
Passage of the bill
On March 30, it was passed by the Senate and then referred to the president for his approval.
The president, however, returned it, with the objection that it was a “colourable legislation”. 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)”.
He underlined that Article 191 of the Constitution empowered the SC “to make rules regulating the practice and procedure of the Court”.
Prime Minister Shehbaz Sharif, however, had termed the president’s move to be “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 said.
On Monday, the bill was passed by the parliament’s joint session with a few amendments. As per the Constitution, the bill will be sent to the president once again for his assent, and if he does not sign it within ten days, assent will be deemed to have been granted.
According to the fresh legislation, a three-member bench consisting of the CJP and the two senior-most judges of the apex court will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP.
The law also states that every cause, matter, or appeal before the apex court would be heard and disposed of by a bench, constituted by a committee made up of the chief justice and the two senior-most judges.
The legislation also includes the right to file an appeal within 30 days of the judgement in a suo motu case and that any case involving constitutional interpretation will not have a bench of fewer than five judges.
The bill would allow former prime minister Nawaz Sharif and other parliamentarians disqualified by the Supreme Court under suo motu powers (such as Jahangir Tareen) to appeal their disqualification within 30 days of the law’s enactment.