File photo. Farooq Naeem—AFP
An eight-member larger bench of the Supreme Court (SC) on Thursday ordered the suspension of the implementation of the Supreme Court (Practice and Procedure) Bill 2023, stating that the legislation posts risks to the independence of the judiciary.
“The moment that the bill receives the assent of the president or (as the case may be) 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,” read the eight-page interim order issued by Chief Justice of Pakistan (CJP) Umar Ata Bandial on three petitions challenging the bill. In addition to him, the bench comprised Justices Ijazul Ahsan, Munib Akhtar, Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi and Shahid Waheed.
The bench’s order stated that the “facts and circumstances” presented by the plaintiffs were extraordinary, both in import and effect. “Prima facie, the contentions raised disclose that there is 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 to be permissible under any constitutional provision. Such intermeddling in the functioning of the court, even on the most tentative assessment, will commence as soon as the bill becomes the act,” it said, adding that an interim measure was required to prevent this from occurring.
“The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognized in our jurisprudence and other jurisdictions that follow the same legal principles and laws,” read the order.
“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 and Procedure) Bill, 2023,” it said, while issuing notices to the respondents—principal secretaries to the president, prime minister, the federal government through the secretary law, the attorney general of Pakistan, Pakistan Bar Council, Supreme Court Bar Association, as well as to the political parties, who may appear through duly instructed counsel, if they so desire. It would resume proceedings on May 2.
According to the order, the bill—on first impression—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 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 the apex court. “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 continued, adding that the bill can be regarded as “seriously wanting” in constitutional competence.
The bill also purports to confer a new appellate jurisdiction on the court, states the order, but 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. 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.
Petitions
The larger bench was hearing three petitions challenging the SC bill that has proven controversial because several legal bodies—including the Pakistan Bar Council—have come out to support it, even as the Pakistan Tehreek-e-Insaf (PTI) and its affiliated lawyers decry it as at an attempt to interference in the independence of the judiciary.
The bill, passed by a joint session of Parliament earlier this week after President Arif Alvi returned it for “reconsideration,” primarily aims to curtail the CJP’s unfettered suo moto powers. It seeks to place the power of taking suo motu notice to a three-member committee comprising the CJP and the two senior-most judges of the Supreme Court. It also aims to have transparent proceedings in the apex court and includes the right to appeal for suo motu rulings. It also states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges, adding the decisions of the committee would be taken by majority.
The bill also calls for the formation of benches comprising at least five judges on any cases requiring the interpretation of the Constitution.
During proceedings, one of the petitions argued that the case was important because the proposed bill allegedly interfered with the independence of the judiciary. He said the president’s objections to the bill were not examined and it was passed by a joint session of Parliament. He also noted the Supreme Court makes its own rules under Article 191.
He also justified taking up petitions against the bill before it becomes law by stating it would become law in 10 days whether or not the president approves it. “The Supreme Court does not exist without the chief justice and by limiting his powers, the judiciary’s independence and other judges will be affected,” he argued, adding the apex court could review steps taken by the state’s institutions.
Condemnations
The ruling coalition, in a statement, described the ruling to suspend a bill before it becomes law a “murder of justice and reputation of the Supreme Court.” Describing the interim order as the “outcome of the one-man show,” he said it would be remembered as a dark chapter in the history of the judiciary. It also vowed that that they would strongly resist this “judicial injustice” and devise a strategy to bring “justice” to the judicial system.