Govt clips top judge’s powers on suo motu, bench constitution

With lightning speed, the federal government on Tuesday not only ruled that the chief justice of Pakistan (CJP) can no longer constitute benches and initiate suo motu proceedings alone but tabled the same bill curtailing unbridled powers of the top judge in the National Assembly for approval. 

Subsequently, NA Speaker Raja Pervaiz Ashraf while referring to the order of the day noted that though the bill related to CJP’s powers had to be passed on Tuesday, the sense of the house suggested that the bill should be referred to the law and justice committee for further deliberation.

Things started unfolding quickly on Tuesday as first Prime Minister Shehbaz Sharif addressed the NA session, then the federal cabinet gave approval for the proposed bill – The Supreme Court (Practice and Procedure) Act, 2023 – and finally the bill was tabled in NA in the presence of the premier, who came back to attend the session after he chaired the cabinet meeting.

Through the proposed bill, the federal government has decided to limit CJP’s powers to take suo motu notice as well as powers to constitute benches on his own in the aftermath of the Supreme Court’s decision to order elections in Punjab and Khyber-Pakhtunkhwa within 90 days of their dissolution, among other such decisions.

In the meeting, the federal cabinet amended the suo motu powers of the CJP, saying that the top judge of the country can’t automatically initiate suo motu proceedings and proposed that three judges of the Supreme Court would decide if the court should initiate suo motu proceedings in a particular matter.

Read more: Dissenting judges urge SC to revisit CJP's ‘one-man show’

The section 2 (constitution of benches) of the proposed law states that “every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the committee comprising the chief justice of Pakistan and two senior most judges, in order of seniority.” It adds that the “decisions of the committee shall be by majority.”

The section 3 of the proposed law proposes that any matter invoking exercise of original jurisdiction under clause (3) of Article 184 (original jurisdiction by the Supreme Court) of the Constitution shall be first placed before the committee constituted under section 2 for examination.

It adds that if the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court which may also include the members of the committee, for adjudication of the matter.

Law Minister Azam Nazeer Tarar later explained in NA that the number of judges can be five or seven or more but it shouldn’t be less than three. The federal cabinet’s decision to curtail CJP’s powers through legislation is taken in line with the prime minister as well as Foreign Minister Bilawal Bhutto Zardari’s recent speeches that called for regulating the CJP’s suo motu powers, arguing it should be a collective decision of the SC judges just like the prime minister takes a collective decision through the federal cabinet.

The section 4 (appeal) of the proposed legislation, states that an appeal shall lie within 30 days from a final order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution “to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days.”

The law minister said in NA that through this section right for an intra-court appeal has been given within a stipulated time, regretting that an appeal against the Supreme Court’s ruling in May 2022 wherein it ruled by a majority of 3-2 decision that defecting lawmakers’ votes could not be counted is still pending for hearing.

It may be recalled here that the decision had led to changing Punjab government as the then chief minister, Hamza Shehbaz was elected to the post with the help of 24 votes of PTI dissident MPAs. However, the SC decision on the presidential reference seeking interpretation of Article 63-A had turned the tables on PML-N and paved the way for PTI’s candidate Chaudhry Pervaiz Elahi to become Punjab CM.

Also read: Power, discretion and transparency

The section 5(right to appoint counsel of choice) of the proposed law further says that for filing a review application under Article 188 (review of judgements or orders by the Supreme Court) of the Constitution, a party shall have the right to appoint counsel of its choice. The SC rules bar to change counsel, law minister later explained the reason behind the amendment.

The section 6 (application for fixation of urgent matters) of the proposed law states that an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing.

The last section (act to override other laws etc.) of the proposed law states that the provisions of the act shall have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgement of any court including the Supreme Court and a high court.

‘Judiciary’s interference causing political instability’

Meanwhile, Federal Minister for Information and Broadcasting Marriyum Aurangzeb presented a resolution before the lower house of the parliament, stating that the House considers that the judiciary’s unnecessary interference in the political matters was the cause of political instability in the country.

Referring to the suo motu proceeding pertaining to elections in Punjab and Khyber-Pakhtunkhwa by the Supreme Court, the government’s spokesperson said that the House not only supports the decision of four judges of the top court against three judges but demands that it should be implemented, adding that the House also expects that the top court would refrain itself from interfering into political and administrative matters.

Also read: PM Shehbaz urges NA to legislate on reducing CJP's powers

In addition, the information minister read that the Election Commission of Pakistan (ECP) is an independent constitutional body, which is bound to hold free and fair elections under Article 218 of the Constitution, urging that the SC shouldn’t interfere in the ECP’s constitutional powers and ECP should be allowed to hold elections when the conditions are suitable.

Also, Marriyum continued by saying that the House rules that political stability was necessary for economic stability and it was necessary that free and transparent polls are held under Article 218 that in line with Article 224 (time of election and by-election) of the Constitution, saying elections of all the assemblies should be held simultaneously under the caretaker setup so that the country could move towards real political stability.

Lastly, Marriyum added that the House rules that all such constitutional matters, where collective wisdom is required and such a demand is also made, should be heard by a full court of the Supreme Court.

Later on, the National Assembly unanimously approved the resolution, urging the SC to not interfere in political matter and demanding to hold general elections simultaneously in the assemblies across the country to ensure political stability.