• PML-Q counsel says legislation aimed at promoting independence of judiciary
• Petitioner says parliament encroaching on ‘exclusive domain’ of top court

ISLAMABAD: The Pakis­tan Muslim League-Q (PML-Q) on Monday pleaded before the apex court that the Supreme Court (Practice and Procedure) Act 2023 — a law that envisions the formation of a committee of three senior judges to form benches on cases involving constitutional matters of public importance — was aimed at promoting the independence of judiciary, the rule of law, and the right to access to justice and fair trial.

The party, represented by its counsel Zahid F. Ebra­him, said Supreme Court rules provide that the legislature can determine the practice and procedure of the Sup­reme Court in relation to the constitution of benches, in particular. Parliament has the right to enact the subject legislation and has done so strictly in accordance with the law and the Consti­tution, the response said.

At the last hearing, a full court headed by Chief Justice Qazi Faez Isa had sought replies by Sept 25, while the court will take up the matter again on Oct 3.

Khawaja Tariq Raheem, on behalf of petitioner Raja Amer Khan, had requested the court to declare the act illegal since parliament cannot change the essence of Article 184 (3) through an ordinary law or intrude in any manner in respect of the rules framed by the Supreme Court (1980 Rules), which have the backing of the Constitution.

Advocate Raheem contended that parliament may be supreme when it makes a constitutional amendment, but even in such cases there were checks and balances in the Constitution as specified in the preamble or the Objectives Resolution.

The petitioner also contended that the jurisdiction of Article 199 and recourse to the high courts would not be an adequate and efficacious means of checking any inroads by the legislature into the spheres of the judiciary, especially the Supreme Court when it is exercising its original jurisdiction under Article 184 (3).

He contended that Article 191 gave the power to the Supreme Court to make rules and it was this power, which was used in SRO 1159-i/80 brought in the 1980 rules for regulating the business of the Supreme Court.

In other words, the rules have “constitutional backing” since they were made by the full court to ensure that the apex court works within a definite mandate and the overall fundamental objective enumerated in the Objectives Resolution that the independence of the judiciary was to be fully secured.

The reply argued that the rules of each organ of the state were beyond encroachment by the other organs since the rule-making power was an exclusive domain of each organ and could not be encroached upon by any other organ of the state.

PML-Q’s response

On the other hand, the PML-Q argued that the primary and central function of the legislative branch was to create laws and the courts must give weight to the purpose of the law remembering that legislation promotes social policy and was a tool for achieving societal goals. “This subjective feature becomes a key factor in interpreting the statute. Therefore in the first instance, the role of the courts is to safeguard and actualise these laws in the public interest.”

The reply argued that the Supreme Court was not concerned with the wisdom or prudence of the legislation but only with its constitutionality.

In the context of the act, in particular, the right of appeal, Entry 55 of the Federal Legislative List (FLL) of the Constitution specified the field of legislation to include “enlargement of the jurisdiction of the Supreme Court”. Hence the legislature was legally warranted to legislate the 2023 act, he added.

The counsel cited a judgement of the court, stating, on the one hand, it limits the legislative power of parliament to making of any law on the jurisdiction and powers of the apex court and on the other hand it empowers parliament to make laws for enlargement of the jurisdiction of the Supreme Court and the conferring of supplemental powers.

“It is respectfully submitted that pursuant to Article 191, the parliament clearly has the right to legislate on matters pertaining to the practice and procedure of the Supreme Court. As a matter of fact… Order XI of the Supreme Court Rules 1980, itself contemplates that parliament may legislate on this subject.”

Published in Dawn, September 26th, 2023