Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday adjourned the hearing on a set of petitions against the Supreme Court (Practice & Procedure) Act, 2023 — aimed at limiting the powers of the top judge — till next week after Attorney General for Pakistan (AGP) Mansoor Usman Awan said the federal government had decided to review the legislation.
The hearing — which was conducted by an eight-judge bench comprising the CJP, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed — was put off shortly after it commenced.
The law envisages a three-member committee, comprising the CJP and two senior-most judges, which will via majority form benches as well as decide when to take suo motu action — powers that currently reside with the CJP alone.
It also adds to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases. This provision will apply retrospectively, through which legal observers believe former prime minister Nawaz Sharif and Jahangir Khan Tareen will be able to file appeals to their lifetime disqualifications under Article 62(1)(f) of the Constitution
Meanwhile, after the top court suspended the SC procedures law, the parliament passed another version of it, removing sections related to curtailing the CJP’s powers but including those on the court’s review jurisdiction in suo moto cases. This new law, titled ‘The Supreme Court (Review of Judgements and Order) Act 2023’, was enacted last week.
The law “aimed at facilitating and strengthening the Supreme Court in exercising its powers to review its judgements and orders” was tabled in the National Assembly on April 14 and passed the same day, while the Senate approved its passage on May 5 amid protests by the opposition.
At the outset of today’s proceedings, AGP Awan came to the rostrum and said that the law — pertaining to the CJP’s suo motu powers — dealt with several other aspects as well.
“We have two laws,” he said, referring to the Supreme Court (Practice & Procedure) Act, 2023 and the Supreme Court (Review of Judgements and Order) Act 2023. “Both the laws have similarities in the sections of review and hiring a lawyer.”
AGP Awan highlighted that the Supreme Court (Practice & Procedure) Act, 2023 was more extensive and included provisions related to the internal affairs of the court.
“It is necessary to arrive at a solution regarding which of the two legislations can be relied upon,” he stressed.
Here, CJP Bandial said, “We are happy that the government and Parliament are bringing amendments to overlapping laws.
“The government should consult with the SC when making laws related to the judiciary,” he added, pointing out that sections 4 and 6 were similar in the review judgments law.
The top judge further maintained that the Parliament could be told to look into the harmonisation of both laws. “We welcome your proposal.”
AGP Awan also said that the legislation done on the SC’s administrative matters did not take into account the judiciary’s advice. “Amendments to the law will now be made with the Supreme Court’s consultation. Other than the legislations, advice will also be sought on other matters.”
However, following the hearing, AGP Awan said that his above-mentioned comment was misquoted.
At one point during the hearing, Advocate Imtiaz Siddiqui — who was representing once of the petitioners — came to the rostrum and recalled that the court had asked for the record of the parliamentary proceedings in its previous hearing.
At that, the CJP said, “We found out through the newspaper that they have declined to present the record but we have the record.
“All records are present on the Parliament’s website. We have taken the record from the Parliament’s website,” he added.
Meanwhile, commenting on the AGP’s remarks, Justice Mazhar said that it was important to see if the issue of similar laws could be solved. “If the laws are similar, it will be a waste of time to hear petitions regarding full court.”
Here, the AGP suggested that the matter could be sent to the Parliament for discussion. However, CJP Bandial interjected and said, “Don’t send it to the Parliament. We will look into it when the government or the Parliament give advice regarding it.”
He then directed Awan to seek instructions from the government and adjourned the hearing till next week. “An appropriate order will be issued later today.”
Justice Bandial also apologised to all the lawyers who had travelled to the apex court from Sindh and other areas.
“The weather here is pleasant, we hope you will enjoy,” the AGP also said.
PTI calls law ‘unlawful’
Prior to the hearing today, the PTI filed its response pertaining to the law aimed at curtailing CJP’s powers and demanded that the legislation should be declared “ultra vires” and subsequently struck down.
The response, a copy of which is available with Dawn.com, said: “In the alternative, declare Sections 2, 3, 4, 5, 7 and 8 (of the act) to be ultra vires the Constitution and strike down the same.”
In its grounds, the PTI argued that the law was “beyond parliament’s legislative competence” and “is unlawful as it impinges on the independence of the judiciary”.
It further stated that the legislation was also unlawful because it “goes against settled interpretations of various constitutional provisions by this Honourable Court”, adding that the interpretations “form a part of the provisions of the Constitution themselves and can thus only be modified by means of constitutional amendments”.
Explaining its grounds for the parliament’s lack of legislative competence, the response cited Article 175(2) under which the law has been passed. It says: “Article 175(2) states that ‘No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law’.”
It went on to cite Article 191, which states that “Subject to the Constitution and law, the Supreme Court may make rules regarding the practice and procedure of the Court.”
The response also said, “Neither of these provisions by itself acts as a source of legislative power, with the term ‘law’ used therein referring only to laws enacted by Parliament in the exercise of legislative power granted by other provisions of the Constitution.”
Asserting that Articles 175(2) and 191 “do not specify the ‘appropriate legislature’ which can pass ‘law’ thereunder”, the PTI argued that the use of the term “law” in those articles does not provide legislative competence to the parliament.
Detailing its grounds for how the law impinges on the judiciary’s independence, the PTI cited the apex court’s April 13 verdict wherein it observed, “The very existence of any such power of Parliament to interfere with the independence of the judiciary is what ‘needs to be determined, and not simply its application to this or that situation’.”
The response noted that if today, the power of Parliament to direct the Supreme Court on who is to constitute benches and hear matters was upheld, an attempt tomorrow by the Parliament to itself constitute benches and assign cases would also have to be upheld. “This is a proposition which simply cannot be sustained,” it asserts.
The PTI also argued that interpretations of the Constitution by the Supreme Court cannot be done away with through “ordinary legislation” and cites two previous cases to support it.
The response further stated: “Any attempts by the Parliament, such as through Section 2 of the Impugned Act, to take away or interfere with the ‘exclusive’ prerogative of the Chief Justice to form benches and assign cases thereto is unconstitutional.”
It also asserted that the office of the CJP, “being an institution in itself, is one against which there cannot be a presumption of mistrust, with the authority vested therein being necessary for the proper functioning of the Court”.
Bill becomes law
Article 184(3) of the Constitution sets out the Supreme Court’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 bill, titled the Supreme Court (Practice and Procedure) Bill 2023, was aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity.
The draft law was initially passed by both houses of Parliament in March 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”. The bill was subsequently adopted by a joint session of parliament on April 10 — albeit with some amendments.
Meanwhile, the top court — while hearing three petitions challenging the then-bill — in an “anticipatory injunction” on April 13, barred the government from enforcing the draft law, saying the move would “prevent imminent apprehended danger that is irreparable” as soon as it became 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 the interim order issued by the eight-member bench.
The ruling coalition government was swift to reject the apex court’s ruling and on April 19 the president again refused to give his assent and sent the draft law back to Parliament.
Despite this, the bill technically became an act of parliament on April 21 under Article 75(2) of the Constitution, and despite the court’s order halting the law’s implementation, the National Assembly Secretariat formally asked the Printing Corporation of Pakistan (PCP) to publish it in the official gazette.
Article 75(2) of the Constitution says that when the president has returned a bill to the parliament, it shall be reconsidered in a joint sitting. If it is again passed, with or without amendment, by the votes of most members of both houses, it is again referred to the president for their assent. If the bill was not signed by the president within 10 days, their assent would have been deemed granted.
According to the legislation, a three-member bench consisting of the CJP and the two senior-most judges of the apex court would decide whether to take up a matter suo motu. Previously, this was solely the prerogative of the chief justice.
The law also states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench, which would be formed by a committee comprising 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 would 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.