SC halts bill on CJP’s powers from taking effect

In ‘pre-emptive’ move, eight-judge bench rules legislation won’t apply even if president gives it nod

ISLAMABAD:

The Supreme Court on Thursday -- acting “pre-emptively” -- stopped the enforcement of a bill that sought to clip the powers of the chief justice of Pakistan to initiate suo motu proceedings or form benches.

The court ruled that whether the bill received the president’s assent or it was deemed to have been given, "the act that comes into being shall not have, take or be given any effect (and) not be acted upon in any manner”.

An eight-judge SC bench issued the written order while hearing a set of three petitions challenging the Supreme Court (Practice and Procedure) Bill 2023.

The bench; comprising CJP Umar Ata Bandial himself, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi and Justice Shahid Waheed; heard the three petitions.

The bench noted that the contentions raised during the hearing of the petitions pointed to “direct interference” with the “independence” of the judiciary.

"We are here concerned with the independence of the judiciary, and in particular this court, in institutional terms and according to the mandate of the Constitution,” the order read.

“Issues of public importance with regard to the enforcement of fundamental rights are involved which require consideration and decision by the court,” it added.

The judgment noted that there appeared to be no authorisation by or under the Constitution, let alone an express one, that allowed parliament to confer an appellate jurisdiction on the court of the sort now sought to be created.

“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 order, signed by all eight judges on the bench.

The order further read that intermeddling in the court’s functioning, even on the most tentative assessment, would commence as soon as the bill became an Act, therefore, an interim measure ought to be put in place as an anticipatory injunction.

Read SC axe hangs on bill clipping CJ powers

“The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognised in our jurisprudence and other jurisdictions that follow the same legal principles and laws,” it added.

With lightning speed on March 28, parliament passed the bill, aimed at curtailing the unbridled powers of the chief justice to form benches and initiate suo motu proceedings.

The bill restricts the chief justice's powers to take suo motu notices as well to constitute benches on his own.

Instead, it stipulates that these powers will be vested in a three-member committee, comprising the chief justice and two-senior most judges.

However, President Arif Alvi returned the bill back to parliament on April 8, without giving his assent.

Subsequently, the lawmakers passed the bill again on April 10 and resent it to the president.

As per the country's law, the president has 10 days to give his assent to the bill. However, even if the president does not give his assent, the bill will automatically become a law and take effect after that period, which in the present scenario was April 20.

However, to prevent the bill from taking effect, three petitions were filed in the top court -- one by Mohammad Shafay Munir on Tuesday, and others by Raja Amir Khan and Chaudhry Ghulam Hussain on Wednesday.

The petitioners contended that the concept, preparation, endorsement and passing of the bill was an act “tainted with mala fide”.

Therefore, they urged the SC to strike it down after declaring it to be "without lawful authority and of no legal effect".

On Thursday, Imtiaz Siddiqui, the lawyer for petitioner Raja Amir, was the first to present his arguments.

He said the case was of "great importance" because of the ongoing situation.

He added that the proposed legislation interfered with the independence of the judiciary.

Siddiqui maintained that the bill was not pending but was a proposed Act and would become a law after the president’s approval.

He argued that the apex court could invalidate a bill passed by parliament.

The lawyer highlighted that the apex court could not exist without the chief justice.

“The Supreme Court completes its work with the appointment of the chief justice and even if there are other judges, the court is not complete without the CJP,” he noted.

Therefore, he argued, the powers of the chief justice and other judges could not be curtailed.

He continued that the office of the chief justice could not be used by any other judge.

He questioned how the CJP’s office could be shared with two other senior judges.

He also referred to the apex court’s ruling last year that invalidated then deputy speaker Qasim Suri’s ruling over the no-confidence motion against then prime minister Imran Khan.

Siddiqui claimed that the court had given several decisions on the independence of the judiciary and could review the actions of every institution.

“The Supreme Court declared in the Qasim Suri case that the actions of parliament could also be reviewed by the court,” he added.

He further contended that the proposed law sought to curtail the powers of the chief justice, but Article 184(3) – related to suo motu jurisdiction -- gave the right to review, and not appeal.

Siddiqui added that an SC judge could not appeal against another top court colleague.

While issuing the order after the hearing, the court noted that "it would be appropriate to make any interim order in relation to the present matter”, as the facts and circumstances 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,” it added.

“It is therefore hereby directed and ordered as follows. 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,” the court ruled.

The SC issued notices to respondents in all the three petitions, including the attorney general for Pakistan (AGP); Supreme Court Bar Association (SCBA) through its president; and Pakistan Bar Council (PBC) through its vice-chairman.

Notices were also issued to the political parties concerned, if they desired to appear through their lawyers.

These parties included the PML-N, PPP-P, PTI, JUI-F, Jamaat-e-Islami, ANP, MQM-P, Balochistan Awami Party and PML-Q.