In pre-emptive strike, SC renders bill clipping CJP’s powers ineffective when it becomes law

Published April 13, 2023
A combination photo of Chief Justice of Pakistan 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, Justice Shahid Waheed. — Photo courtesy Supreme Court website
A combination photo of Chief Justice of Pakistan 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, Justice Shahid Waheed. — Photo courtesy Supreme Court website

In a pre-emptive strike, the Supreme Court (SC) ruled on Thursday that after the bill aimed at clipping the powers of the chief justice of Pakistan (CJP) received either the president’s assent or it was deemed to have been given, the act that “comes into being shall not have, take or be given any effect nor be acted upon in any manner”.

An eight-judge SC bench issued the written order while hearing a set of three petitions challenging the Supreme Court (Practice and Procedure) Bill 2023.

The proposed law 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.

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.

However, with the SC’s latest order, the implementation of the law that will subsequently come into effect has been halted.

The detailed order issued said that contentions raised disclosed that there was a “substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision”.

“Such intermeddling in the functioning of the court, even on the most tentative assessment, will commence as soon as the bill becomes the act. Accordingly, in our view an interim measure ought to be put in place, in the nature of an anticipatory injunction.

“The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognised in our jurisprudence and other jurisdictions that follow the same legal principles and laws.

“It is therefore hereby directed and ordered as follows. The moment that the bill receives the assent of the president or (as the case may be) it is deemed that such assent has been given, then from that very moment onwards and till further orders, the act that comes into being shall not have, take or be given any effect nor be acted upon in any manner,” it said.

The detailed order said that while the bill is “not yet law it is nonetheless, with exactitude, that what will have the force of law, when the act comes into being,” adding that it could be considered and examined even at this stage.

“The bill prima facie seems to be open to question on the constitutional plane on several grounds which, inter alia, raise issues of a serious nature in relation to the independence of the judiciary. Such independence is deeply rooted in the fabric of the Constitution and forms an integral part of the structure of fundamental rights. Indeed, it is itself one such right. Any legislative effort that interferes with, or impinges on, the same should be subjected to close scrutiny,” the order said.

It further said that the bill, in clauses two to four, sought to regulate the manner in which appeals before the court were to be heard, in particular the benches that were to take up the cases and decide the same.

It went on to say that the bill appeared to be premised on the approach that Article 191 of the Constitution sets up a hierarchy in relation to the practice and procedure of the court.

Article 191 states the following: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court.”

“On this view the Constitution is obviously at the top, followed by ‘law’ and then the rules made by the court itself. This hierarchical structure prima facie subordinates the rules made by the court to ‘law’ and therefore, the Supreme Court Rules, 1980 to the incoming act. The regulation of the matters laid out in clauses two to four purports to trump anything contained in the rules.”

The order said that clause eight of the bill sought to reinforce this by giving overriding effect for its provision over not only any rules but also any judgement of any court. “Prima facie, this approach is a serious encroachment upon, interference with and intrusion into the independence of the judiciary.”

The order further stated that any intrusion in the practice and the procedure of the SC, even on the most tentative of assessments, would appear to be “inimical to the independence of the judiciary, no matter how innocuous, benign or even desirable the regulation may facially appear to be”.

“Prima facie, therefore, when the bill and the act that is soon to come into being, is examined on the anvil of the most fundamental principles that underpin the Constitution, it can be regarded as seriously wanting in constitutional competence.”

The order said that clause five of the bill purported to confer a new appellate jurisdiction on the court in exercise of legislative power under Article 191.

“However, it is highly doubtful whether Parliament can do this, since a right of appeal is not merely a matter of practice or procedure but is a substantive right. It would therefore seem, at first sight, that the appellate jurisdiction now sought to be conferred is beyond any competence conferred by Article 191, whether on the court itself or any ‘law’ purported to be made by Parliament […] There appears to be no authorisation by or under the Constitution, let alone an express one, as allows Parliament to confer an appellate jurisdiction on the Court of the sort now sought to be created.”

The order further said that notices were being issued to Attorney General for Pakistan (AGP) Mansoor Awan, Pakistan Bar Council (PBC), the Supreme Court Bar Association of Pakistan and other respondents in the case. The proceeding was then adjourned till May 2.

Govt rejects SC’s ruling

The ruling coalition government was swift to reject the SC’s ruling. In a joint statement, the government termed the order to be a “clear example of a conflict of interest”.

It said that this was the first time in history that a piece of legislation was being halted by a “controversial and one-sided bench” before it had even been enacted.

The ruling coalition said the judgement was based on a mere “presumption” and this was not just against traditional legal procedure but also logic.

The statement further said the decision was an “offshoot of a one-man show”, which would go down as a “black chapter in the judiciary’s history”.

“The move is in violation of the Constitution and has trampled on the powers of Parliament,” the statement said.

The ruling coalition said that it would devise a strategy to ensure justice in the country so that Pakistan could be steered out of the ongoing crises. “We vow to protect and defend parliament, which is representative of the people, and its constitutional powers,” the government said.

Today’s hearing

An eight-bench bench, comprising CJP Umar Ata Bandial, the bench hearing the case comprises Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha A. Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed, took up the pleas challenging the bill earlier today.

As the hearing commenced, the petitioners’ lawyers Advocate Azhar Siddique, Advocate Imtiaz Rashid Siddiqui and Attorney General for Pakistan (AGP) Mansoor Awan appeared in the court.

At the outset of the hearing, Advocate Imtiaz presented his arguments. He said that in the current scenario, the case held a lot of importance.

He stated that ever since the National Assembly was restored in April last year, the political divide and crisis had increased. The federal government and the Election Commission of Pakistan (ECP) are not willing to hold polls in Punjab and KP.

The lawyer recalled that the SC had taken a suo motu notice last month and subsequently instructed the government to hold elections. “On April 4, the court once again passed the same orders,” he said but at the same time highlighted that a deeper crisis had emerged after the apex court’s orders.

“The court and judges were each personally criticised,” he pointed out, holding the government and members of the parliament responsible for it.

Talking about the bill in question, the lawyer contended that the proposed legislation was an attempt to interfere with the independence of the judiciary.

“After approval from both houses of the parliament, the bill was sent to the president but he returned it to the National Assembly with objections,” he recalled. “But on the basis of political differences the president’s objections were not reviewed.”

Advocate Imtiaz went on to say that the bill will automatically become a law within 10 days after approval from a joint session.

He argued that under Article 191 of the Constitution, the SC made its rules itself. Under the new law, decisions regarding suo motu cases and the formation of the benches would be taken by a three-member committee, Imtiaz continued.

“The basic question is whether this bill is worthy of becoming a law,” the lawyer asked, stating that it was illegal for the cabinet to ratify the bill. “Bill presentation and approval in the cabinet are both administrative matters.”

Presenting the bill in the assembly and getting approval is also unconstitutional, he further said and argued that whether the president gave his assent or not, the proposed act would eventually become a part of the law.

“The Supreme Court can invalidate the bill passed by the Parliament,” Imtiaz said. “The apex court does not have an existence without the CJP. Only with the appointment of the CJP can the SC be complete.

“Without the CJP, even if other judges are present, the SC would be incomplete,” the lawyer insisted. “The powers of the CJP and other judges cannot be reduced.

“The office of the chief justice cannot be used by another judge. How can he share his office with two other senior judges?” he asked.

The lawyer further contended that the SC had previously issued various decisions pertaining to the independence of the judiciary and highlighted that the apex court could review the actions of every institution of the state.

Referring to the SC’s judgment in former NA deputy speaker Qasim Suri’s controversial ruling case, Imtiaz said that the apex court had declared during the hearings that actions of the parliament could also be reviewed.

In the past, the court has declared that a bill cannot be stopped from passing but once it was passed the court could review it. “Hence, as per the court decision, the proposed act can be reviewed even before the assent of the president.”

Continuing his arguments, the lawyer said that the court was the guardian of the Constitution and was empowered to ensure that justice prevailed. All the institutions were bound to adhere to the SC’s orders, but the Supreme Court rules cannot be amended by the parliament, he contended.

Imtiaz also said that the president was the symbol of the unity of the state and that his role was not just ceremonial. He recalled that the president had clearly called for reviewing the SC (Practice and Procedure) Bill 2023. “But after approval from the National Assembly, the bill could not be amended.”

He further argued that the legislative process was considered to be complete once a bill was approved by the parliament. “The order of the court in the present case will not interfere with the pending legislation.

“The parliament has completed its work, so this [case] cannot be considered an interference,” Imtiaz added.

Here, the CJP remarked: “According to you, the independence of the judiciary is a fundamental right which is fully protected by the Constitution.

“According to you, just like the parliament and the executive, the judiciary also enjoys constitutional protection,” Justice Bandial said.

At one point during the hearing, Imtiaz referred to the Hasba bill — which proposed the appointment of an ombudsman for enforcing ‘Islam’s morality code’ — saying that the SC had reviewed the bill after it was approved.

“The SC had rejected the objections in the maintainability of the case and had declared the bill unconstitutional,” he said, adding that the bill had come to the court as a presidential reference.

At that, Justice Mazhar said that the Hasba bill had come to court in the form of a reference and the governor was stopped from signing it.

The present case, the lawyer went on, fell under Article 184(3) of the Constitution in which the court had superior jurisdiction. Under the law, the SC has even issued orders to demolish a wedding hall, he said.

“All the orders of the court are subject to fundamental rights. But is the independence of the judiciary not a fundamental right of the people?” he asked, stressing that the SC bill was aimed at clipping the CJP’s powers.

“The real question is whether the parliament can regulate the internal affairs of the judiciary?” he questioned and then requested the bench to stop the law ministry from notifying the bill into a law until the case was wrapped up.

Subsequently, the CJP adjourned the hearing till next week, saying that the date for the proceedings will be announced as per the availability of the judges.

Federal coalition issues joint statement rejecting bench

Earlier today, the federal coalition issued a joint statement rejecting the eight-member bench, saying that the apex court’s move to form a “controversial bench” even before the completion of the legislative process was “unprecedented” and “unacceptable”.

It is notable that Justices Qazi Faez Isa and Sardar Tariq Masood, the senior-most judges after the chief justice, are missing from the bench. Justice Isa, along with Justice Aminuddin had earlier ruled that the CJP did not have the power to form special benches or decide its members. The order was later recalled in a brisk hearing by a six-member larger bench. Justice Isa, in a judicial note, later said that the bench did not “constitute a constitutional court”.

In its joint statement, the ruling parties said that “such a move was never seen in the history of Pakistan and the SC”. It said that the top judge’s move was “tantamount to destroying the credibility of the highest court of the country and making the constitutional process of justice meaningless”.

“This bench itself is a testament to the division of the SC, which once again supports the earlier stated position of the ruling parties.”

The statement recalled that the apex court judges — Justice Isa and Justice Khan — had in their earlier judgments openly expressed their objection to “one-man show”, biased and dictatorial behaviour, and the formation of special benches.

“With the formation of the eight-member controversial bench, the facts stated in the judgments of these honourable judges have become more clear,” the PDM said in its statement.

It further contended that the legal fraternity too had opposed the apex court’s move to take up the petitions against a proposed law. The coalition government also expressed concern regarding the non-inclusion of judges from smaller provinces i.e. Balochistan and Khyber Pakhtunkhwa (KP).

“The ruling parties consider this move as an attack on the parliament and its authority, which will be strongly resisted. The constitution of the controversial bench in haste and fixing the bill for hearing, apart from the intent and intention, also clearly expresses the decision to come which is sad and tantamount to murder of justice,” the statement said.

It added that every attempt to take away the authority of the parliament and interfere in its constitutional scope would be strongly resisted. “There will be no compromise on the authority of the Parliament in the light of the Constitution of Pakistan,” the statement concluded.

PBC protest call

In a statement issued on Wednesday night, the Pakistan Bar Council took issue with the fact that challenges to the SC (Practice & Procedure) Bill were taken up in haste and assailed the formation of “a one-sided and controversial bench” to take up the matter.

Lawyer leaders termed the step an attempt to divide the highest court in the land and agreed that never in history had a law enacted by parliament been prevented from being implemented.

They said that the legislation conforms to the demands of bar councils and associations across the country, and any attempts to prevent its passage would be opposed.

Announcing a complete boycott of the courts to protest this development, the PBC statement said that its representatives from across the country would meet on April 17 to consider the issue.

Separately, in an interview with DawnNewsTV on Wednesday night, Hasan Raza Pasha — who heads the PBC’s executive committee — said that the decision regarding the formation of the bench was taken in “haste” because the bill in question was still under the process of becoming a law.

“It would have been better if the bench was formed after the bill was approved into an act,” he suggested.

Pasha said that the formation of the bench would also further deepen the cracks within the apex court as senior-most judges were not made a part of the bench.

“The CJP had a chance… if he wanted to form an eight-member bench, it could have included the senior-most judges,” he stated, adding that the bar council had repeatedly told the CJP to call a full-court meeting, if not a full-court bench, because “fingers are repeatedly being raised on the sovereignty of the institution”.

Meanwhile, others from the legal fraternity rallied outside the Supreme Court building holding placards which said ‘election karao, mulk bachao (hold elections to save the country)’ — a refrain commonly held by PTI leaders.

PTI leaders like Hammad Azhar accused the PBC of being “pro-regime” on Twitter.

The petitions

The petitions challenging the SC (Practice & Procedure) Bill, 2023 were separately moved by Mohammad Shafay Munir on Tuesday, and Raja Amer Khan and Chaudhry Ghulam Hussain on Wednesday.

They argued that the concept, preparation, endorsement and passing of the Supreme Court (Practice and Procedure) Bill, 2023 is an act tainted with mala fide. Therefore, they urge the SC 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.

Advocate Imtiaz Rashid Siddiqui represented petitioner Khan, Advocate Mohammad Azhar Siddique appeared on behalf of petitioner Hussain whereas Advocate Mohammad Hussain will represent petitioner Munir.

The petitioners requested the SC to suspend the bill during the pendency of the petition, with a directive for President Dr Arif Alvi not to assent the bill so that it could not become an act of parliament. They contended that 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 CJP, under the Constitution.

The impugned bill is ultra vires and an unconstitutional measure, in sheer violation of the constitutional mandate, the petitions said, adding the federal government has committed a blatant violation of the Constitution.

According to the petitions, the Supreme Court and its corpus as defined in Article 176 consist of CJP and so many other judges as may be determined by the parliament or, until so determined, as may be fixed by the president. It is clear that the CJP is the centrifugal force and the entire fabric of the apex court is webbed around it. The independence of the judiciary and of each of the judges and its CJP is declared as an aim enunciated in the preamble to the Constitution; the same is a part of the objective resolution and thus a substantive part of the constitution, the petitions emphasized.

The SC, led by CJP with its judges, must be independent of all executive or legislative transgress so as to perform their constitutional obligations in providing justice to the people of Pakistan. The same cannot be allowed to be compromised with regards to the function of the judicial organ of the state, the judges or CJP or their independence as provided in the constitution.

It is unimaginable that the office of CJP with respect to constitutional powers, inter alia, of suo motu could be allowed to be regulated by the parliament, according to the petitions.

The petitioners further argued the parliament could not make a law that was inconsistent with the referred provisions of the Constitution. They contended that if any appeal could be allowed by a legislative enactment then the same could only be available through an amendment to the Constitution.

Passage of the bill

The bill was approved by the federal cabinet on March 28 and the National Assembly passed it a day later after a few amendments suggested by the Standing Committee on Law and Justice.

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 office 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.


Additional input by Tahir Sherani

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