• Eight-judge bench justifies move by saying bill tinkering with court’s internal working was ‘set to become law’; fears meddling as soon as it is enacted
• Judges wonder if parliament has power to legislate the issue; AGP regrets court’s disregard for settled case law
ISLAMABAD: In an “anticipatory injunction”, the Supreme Court on Thursday barred the government from enforcing a proposed law targeting the suo motu powers of the top judge, saying the move would “prevent imminent apprehended danger that is irreparable” as soon as the bill becomes an act of parliament.
“The moment that the bill receives the assent of the president or 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,” said an interim order issued on Thursday evening by an eight-member bench.
“The court has great respect for parliament but it also has to examine if any constitutional deviation, violation or transgression has taken place while enacting the Supreme Court (Practice & Procedure) Bill, 2023,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial, who was heading the bench.
The bench comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed observed that there appeared to be no authorisation under the Constitution that allows parliament to confer an appellate jurisdiction on the court, which is now being created.
The larger bench, which had taken up a set of three petitions challenging the proposed law — filed by Raja Amer Khan, Chaudhry Ghulam Hussain, and Muhammad Shafay Munir — also hinted at the possibility of appointing an amicus to assist the court.
The Supreme Court also issued notices to the respondents — principal secretaries to the president, prime minister, the federal government through the secretary law, the attorney general, Pakistan Bar Council, Supreme Court Bar Association, as well as to the political parties, who may appear through duly instructed counsel, if they desire.
Meanwhile, outside the courtroom, a large contingent of Rangers with anti-riot gear was deployed on the court premises alongside police to counter any untoward incident after a sizeable number of lawyers from the PTI camp also demonstrated for the second consecutive day, to show solidarity with the CJP.
Passed by a joint session of parliament earlier this week after it was returned by President Arif Alvi, the bill is once again awaiting
presidential assent to become an act of parliament. But even if the president does not sign the bill, the same would have been considered passed into law within ten days of its passage.
Independence of judiciary
The bench, which started proceedings slightly later than scheduled, first heard the arguments of Advocate Imtiaz Siddiqui, who declared that the bill was a “proposed act” since it would eventually become the act of the parliament by April 20.
In its order, the court said it was concerned with the independence of the judiciary, in particular the Supreme Court. Issues of public importance with regard to the enforcement of fundamental rights are involved in the case, which requires consideration and decision by the court, the order issued in the evening said.
Referring to the question of whether it would be appropriate to make any interim order in relation to the present matter, the court cited the 2010 Dr Mobashir Hassan (NRO) case. “In our view, the facts and circumstances presented here are extraordinary both in import and effect,” the order said, adding that prima facie, the contentions raised by the counsel 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 permissible under any constitutional provision.
“Such intermeddling in the functioning of the Supreme Court, even on the most tentative assessment, will commence as soon the bill becomes the act,” the order explained. The order maintained that though the bill was not a law yet, it will have the force of law when the act comes into being. Therefore, the bench ruled, it can be considered and examined even at this stage.
It is possible even now, as the bill moves seamlessly through time towards becoming an act, to consider whether what parliament seeks to do passes muster constitutionally, the order said, adding that the bill prima facie seems to be open to question on the constitutional plane on several grounds which 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 adding the bill, in clauses 2 to 4, seeks to regulate the manner in which causes or appeals before the court were to be heard, in particular, the benches that were to hear and decide the same.
Role of Article 191
On first impression, the bill appears to be premised on the approach that Article 191 purportedly sets up a hierarchy in relation to the practice and procedure of the court, the order said.
The regulation of the matters laid out in clauses 2 to 4 purports to trump anything contained in the Supreme Court rules, it said, adding that the bill seeks to reinforce this in clause 8 by giving overriding effect to its provisions over not only any “rules” but also any judgement of any court, including this court. Prima facie, this approach is a serious encroachment upon, interference with and intrusion into the independence of the judiciary, the order feared.
“Any intrusion in the practice and procedure of the court, 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,” the order explained.
Prima facie, when the bill 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 judgement said.
The bill also purports to confer a new appellate jurisdiction on the court 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, the order said.
It would therefore seem, that the appellate jurisdiction now sought to be conferred is beyond any competence conferred by Article 191, whether on the Supreme Court itself or any “law’’ purported to be made by parliament.
Separately, in a statement issued after the SC passed its interim order, Attorney General for Pakistan Mansoor Usman Awan said the way the case had proceeded was quite disappointing.
There was a clear impression that the case would be heard during next week, for which notices were being issued and recalled that a 12-member bench had held in the Aitzaz Ahsan case that the operation of a law cannot be suspended, and this judgment has consistently been followed by the courts.
However, he regretted how the court had disregarded settled jurisprudence in a most unusual manner.
Published in Dawn, April 14th, 2023