All eight judges of the Supreme Court of Pakistan - Image source Dawn News
On Thursday, the Supreme Court took a “pre-emptive” action to halt the implementation of a bill aimed at curtailing the authority of the chief justice of Pakistan to initiate suo motu proceedings or form benches.
The court decreed that regardless of whether the bill received the president’s approval or was deemed to have been granted, “the resulting act shall have no effect, shall not be enforced, and shall not be acted upon in any manner.”
An eight-judge bench of the Supreme Court, including Chief Justice Umar Ata Bandial, 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, issued the written order while considering three petitions challenging the Supreme Court (Practice and Procedure) Bill 2023.
The bench noted that the arguments presented during the petitions’ hearing indicated “direct interference” with the “independence” of the judiciary.
“Our concern is the independence of the judiciary, particularly this court, in terms of its institutional integrity and in accordance with the Constitution’s mandate,” read the order.
The judgment acknowledged that issues of public importance relating to the enforcement of fundamental rights were at stake and required the court’s careful consideration and decision.
The judgment also highlighted that there was no authorization, explicit or otherwise, under the Constitution that permitted parliament to confer an appellate jurisdiction on the court, as was being attempted by the bill in question.
“From the moment the Act comes into existence, it shall have no effect, and shall not be acted upon in any manner until further orders,” stated the order, which was endorsed by all eight judges on the bench.
The order further emphasized that any interference with the court’s functioning, even based on a tentative assessment, would begin as soon as the bill turned into an Act. Therefore, an interim measure in the form of an anticipatory injunction was necessary to safeguard against such interference.
Supreme Court Considers Bill to Limit Chief Justice’s Powers
“The issuance of an injunction to prevent imminent and irreparable danger, as recognized in our jurisprudence and other legal systems, is an appropriate remedy,” stated the court.
The bill, aimed at curbing the extensive powers of the chief justice to initiate suo motu proceedings and form benches, was swiftly passed by parliament on March 28.
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Under the bill, the chief justice’s authority to take suo motu notices and constitute benches on their own would be restricted. Instead, a three-member committee, consisting of the chief justice and the two most senior judges, would be vested with these powers.
However, President Arif Alvi returned the bill to parliament on April 8 without granting his assent.
Subsequently, the bill was passed again by lawmakers on April 10 and resent to the president.
According to the country’s law, the president has 10 days to grant assent to the bill. Even if the president does not grant assent, the bill will automatically become a law and take effect after that period, which in the current situation would be April 20.
To prevent the bill from taking effect, three petitions were filed in the Supreme Court – one by Mohammad Shafay Munir on Tuesday, and others by Raja Amir Khan and Chaudhry Ghulam Hussain on Wednesday.
The petitioners asserted that the conception, preparation, endorsement, and passage of the bill were marred by “mala fide” intent. Hence, they implored the Supreme Court (SC) to strike it down and declare it “without lawful authority and of no legal effect”.
On Thursday, Imtiaz Siddiqui, the counsel for petitioner Raja Amir, presented his arguments as the first speaker. He emphasized that the case held great significance given the current circumstances, as the proposed legislation would interfere with the judiciary’s independence.
Siddiqui maintained that the bill was not pending, but a proposed Act that would become law upon the president’s approval. He contended that the apex court had the authority to invalidate a bill passed by parliament.
The lawyer pointed out that the Supreme Court could not function without the chief justice, as the appointment of the chief justice completed the court’s composition, and without the Chief Justice of Pakistan (CJP), the court would be incomplete.
Therefore, he argued that the powers of the chief justice and other judges could not be curtailed.
He further argued that the office of the chief justice could not be usurped by any other judge and questioned how the CJP’s office could be shared with two other senior judges.
He also referred to the apex court’s previous ruling last year that invalidated the ruling of then deputy speaker Qasim Suri on the no-confidence motion against then prime minister Imran Khan.
Siddiqui argued that the Supreme Court had previously made several decisions affirming the independence of the judiciary and had the authority to review the actions of all institutions.
He referenced the court’s declaration in the Qasim Suri case that the actions of parliament could also be subject to review by the court.
He further contended that the proposed law aimed to curtail the powers of the chief justice, but Article 184(3) regarding suo motu jurisdiction only provided for the right to review, not appeal.
Siddiqui added that one Supreme Court judge could not appeal against another colleague in the top court.
After the hearing, the court issued an order noting that it would be appropriate to make interim orders in relation to the present matter, as the facts and circumstances were extraordinary in terms of their significance and impact.
The court further stated that the contentions raised prima facie revealed a substantial, immediate, and direct interference with the independence of the judiciary, in the form of multiple intrusions disguised as regulation of the practice and procedure of the court.
The court directs and orders as follows:
Once the bill receives the assent of the president, or is deemed to have received such assent, from that moment onwards until further orders, the Act that comes into being shall have no effect, shall not be acted upon in any manner,” ruled the Supreme Court.
The court issued notices to respondents in all three petitions, which included the attorney general for Pakistan (AGP), the president of the Supreme Court Bar Association (SCBA), and the vice-chairman of the Pakistan Bar Council (PBC).
Notices were also issued to the concerned political parties, such as PML-N, PPP-P, PTI, JUI-F, Jamaat-e-Islami, ANP, MQM-P, Balochistan Awami Party, and PML-Q, if they wished to appear through their lawyers.
