A bill of contention

Published April 17, 2023

THE parliament and judiciary have been locked in a power struggle that has raised questions about the moral authority and legitimacy of the Supreme Court, the parliament’s authority to legislate on the court’s jurisdiction and the need for curtailing the top judge’s absolute and “imperial” powers.

Let’s take a look at how and why things have come to such a point that the two key state institutions seem to be fast moving towards a head-on collision.

The battle for supremacy that was long lurking beneath the surface came to the fore late last month when the parliament passed the Supreme Court (Practice and Procedure) Bill 2023. This ruffled a few feathers within the SC, though it also exposed the widening fissures within the judiciary.

When a petition was filed in the top court to challenge the bill, the CJP formed a bench of eight judges — his “favourites”, according to the coalition government — who halted the bill’s implementation before it became a law.

SC and parliament are in a staring match over a piece of legislation. Will one of them blink first?

The CJP’s move appears to be a response to the government’s rejection of the Supreme Court’s verdicts and defiance of its orders, with the CJP keen to underline his power and authority.

So, what was in the bill?

The piece of legislation is a significant development in the constitutional and legal framework of the top court. It proposes to limit the chief justice’s almost absolute administrative powers, which include the power to form benches and fix and transfer cases.

It seeks to transfer these powers to a three-member committee consisting of the chief justice and the two senior-most judges of the Supreme Court. The committee will then decide whether or not to take up a matter suo motu, which was previously solely the chief justice’s prerogative.

Political, legal background

The demand to regulate CJP’s powers has been a longstanding one, legal fraternity, the representative bodies of the bar councils and judges, and political parties, calling for the establishment of a proper system of checks and balances.

The chief justice has traditionally enjoyed immense powers, which has led to accusations of favouritism and arbitrary decision-making. Former CJPs Iftikhar Chaudhry and Saqib Nisar employed these powers to the hilt.

Stay, anticipatory injunction

The bill has also sparked a constitutional debate over the court’s power to grant an anticipatory injunction and stay against a piece of legislation that has not yet become law.

The precedents of the 1989 Aitzaz Ahsan case and the 2010 Dr Mobashir Hassan case, delivered by the SC’s full court, are instructive here. While the former held that the court does not have the power to suspend a bill or law, the latter held that the provisions of a law cannot be suspended unless the court is suspending a particular order, judgement, or action.

It is significant to note that the Supreme Court cited Dr Mobashir case by a 17-member bench, but the Aitzaz case by an 11-member bench was ignored for considering the question of whether it is appropriate to make an interim order.

Most legal experts believe that Supreme Court’s decision to suspend the bill violated these precedents and amounted to absolute judicial overreach into the jurisdiction of the legislature.

Parliament vs divided SC

Due to the controversy over the bill, the moral legitimacy of the Supreme Court is also being questioned, with some arguing that its decision to suspend the bill goes beyond its constitutional mandate and encroaches on the domain of the parliament.

The parliament versus the judiciary struggle over jurisdiction is not a new issue in Pakistan.

In 2010, when the parliament tried to make modest changes in the procedure for appointing the justices to the constitutional courts, the Iftikhar Chaudhry-led SC threatened to strike down the 18th Amendment unless the parliament reconsidered the appointment process and restored the CJP’s dominant role. The parliament backed away.

In the present case, the coalition government immediately denounced the eight-judge bench formed to hear the case and urged CJP Bandial to dissolve it. They argued that their demands were necessary to maintain a balance of power and were not intended to intervene in the chief justice’s powers.

The law minister alleged that a “selective bench” had been formed in disregard of the rules and expressed concerns over the lack of representation from certain provinces. The National Assembly has since passed three resolutions in as many weeks against the judiciary.

Parliament’s counter-attack?

The parliament has decided not to back down. The National Assembly has passed another piece of legislation, titled the Supreme Court Review of Judgments and Orders Bill.

The proposed bill apparently aims to expand the review jurisdiction of the Supreme Court by allowing for a broader scope of review on both facts and law. The scope of the review has been expanded to resemble an appeal.

Some legal experts see this as a “camouflaged legal attack”, allowing the government to file an appeal under the guise of a review.

The power struggle between the judiciary and the executive-led legislature is likely to continue, with each side asserting its supremacy.

With the powerful establishment apparently siding with the executive and the parliament, it is difficult to see how a divided Supreme Court can win this battle, considering it neither has the power of the sword nor purse, and now it has lost a significant part of its moral authority and credibility.

From here onwards, it will either lead to the dismissal of the chief executive, a remote likelihood, or taming of the office of the CJP, or, worse, his ouster.

The writer is a lawyer and teaches at Lums. A detailed version of this article can be accessed on Dawn.com

Published in Dawn, April 17th, 2023

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