Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday indefinitely adjourned the hearing on a set of petitions challenging the Supreme Court (Practice & Procedure) Act, 2023 — which seeks to limit the powers of the top judge — without any proceedings after Attorney General for Pakistan (AGP) Mansoor Usman Awan said the government could not immediately review laws regulating the court’s affairs.
An eight-member 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 to take up the case today.
In the previous hearing, the apex court had decided to take a recess in hearing the case for a week after AGP Awan apprised it of the government’s intention to harmonise some “overlapping provisions” of the Supreme Court (Practice & Procedure) Act 2023 and the Supreme Court (Review of Judgments and Orders) Act 2023.
The Supreme Court (Practice & Procedure) Act 2023 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.
Meanwhile, the review judgments law expands the jurisdiction of the court by giving a right to appeal under Article 184(3). According to it, the scope of a review will be similar to Article 185, which confers appellate jurisdiction to the top court.
The CJP had welcomed the stance of the government and said that he was glad to know that the government and parliament would be reviewing the two laws to remove the overlapping of some provisions.
However, the proceedings did not take place today.
Nearly an hour after the hearing was set to commence, judicial staff told media persons at the apex court that Justice Bandial had called the AGP and other lawyers to the meeting room.
During the meeting, Awan told the top judge that the government could not immediately legislate on the Supreme Court (Practice & Procedure) Act, 2023 and the Supreme Court (Review of Judgments and Orders) Act, 2023 to harmonise the overlapping provisions in the laws.
He said the delay was due to the upcoming budget session — which will be held tomorrow (June 9) — and requested the court to hold the hearing after the session.
Subsequently, today’s hearing was adjourned without any proceedings.
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 the 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 will 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 law 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.