ISLAMABAD– In a significant development, the Supreme Court (SC) on Thursday ordered that the Supreme Court (Practice and Procedure) Bill 2023 would not be acted upon in any way until further order, even if it received the president’s assent.
Three petitions opposing the SC bill were decided on in an eight-page ruling by the top court’s eight-member larger bench, which was presided over by Chief Justice of Pakistan (CJP) Umar Ata Bandial and included Justices Ijaz ul Ahsan, Munib Akhtar, Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar, Ayesha A. Malik, Syed Hasan Azhar Rizvi, and Shahid Waheed.
“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 judgement.
Chief Justice of Pakistan Umar Ata Bandial, while hearing the plea against the Supreme Court (Practice and Procedure) Bill 2023, has observed that the apex court holds parliament in high esteem.
The court issued notices to the political parties, the federal government, Attorney General for Pakistan Mansoor Awan, the Pakistan Bar Council, the Supreme Court Bar Association and other respondents in the case.
The Supreme Court (Practice and Procedure) Bill 2023 aims at curtailing chief justice of Pakistan’s power to take suo motu motice.
An eight-member larger bench headed by Chief Justice of Pakistan Umar Ata Bandial is hearing the plea. The bench includes Justice Ijaz-ul-Ahsan, Justice Muneeb Akhtar, Justice Mazahir Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi and Justice Shahid Waheed.
Four petitions against the bill have been filed in the Supreme Court.
At the outset of the hearing, Advocate Imtiaz Siddiqui, the counsel for petitioner Raja Amir, argued that the case was of prime importance in the present scenario. After the Qasim Suri case, there has been a lot of political division. Since the restoration of the National Assembly, political crisis deepened, he added.
The Supreme Court had to take suo motu notice as the federal government and the Election Commission showed no willingness to conduct the elections and order the commission to conduct the polls, the counsel continued.
Advocate Siddiqui said that on April 3, the court ordered to hold elections again. After the court order more problems were created. Ministers and parliamentarians criticised judges.
The counsel submitted that the proposed legislation interfered with the independence of the judiciary. After the approval of both houses, the bill was sent to the president who sent it back after raising objections. No consideration was given to the president’s objections due to political differences, he submitted.
Under Article 191, the Supreme Court is authorised to make its own rules.
The counsel said that the Supreme Court could invalidate a bill passed by parliament. The Supreme Court is nothing without the chief justice. Limiting the powers of the chief justice will affect the independence of the judiciary.
Advocate Siddiqui said the powers of the chief justice and judges could not be curtailed. The office of the chief justice could not be used by any other judge, even for a moment. How can the office of the chief justice be shared with two senior judges?
He said that the Supreme Court has declared in the Qasim Suri case that the actions of the parliament can also be reviewed. In the past, the court has declared that a bill cannot be stopped from passing. If a bill is passed, the court can review it.
The lawyer said there are judicial precedents that a proposed act can be reviewed even before the assent of the president.
The court is the guardian of the constitution and empowered to administer justice, he said and added that institutions including the parliament are bound to obey the orders of the Supreme Court.
There are rules of the Supreme Court under Article 191 which parliament cannot amend, he submitted
CJP Bandial asked him that according to him the independence of the judiciary is a fundamental right which is fully protected by the constitution, like the parliament and the executive.
Advocate Siddiqui said that the president is a symbol of the unity of the state of Pakistan. The office of the president is not merely ceremonial. The president is the force that holds all the units together. He can direct to re-examine the bill. A bill cannot be amended after the assembly passes it.
After the passage of the bill, the legislative process is considered complete.
He said the order of the court in the present case will not interfere with the pending legislation. Parliament has completed its work and sent the bill to the president, so it cannot be considered intervention of the court.
The bill grants right to appeal against the Supreme Court ruling. If a case is heard by a 10-member bench, how can an appeal be filed? Can junior judges hear appeals against the decision of senior judges?, the lawyer questioned.
Chief Justice Omar Atta Bandyal said that all the judges of the court are equal.
Siddiqui said that the reference in the Justice Faiz Isa case was in the Supreme Judicial Council, senior judges were hearing the reference and the Supreme Court declared the proceedings unconstitutional before the reference.
In the present case the steps prior to the passage of the bill should also be examined, he argued.
Justice Muneeb Akhtar asked Advocate Siddiqui what he wanted from the court in the present case. He requested that the court to declare the bill unconstitutional. The court must prevent the proposed bill from becoming law pending the decision.
The court issued notices to the parties in the petitions. It also issued notices to Pakistan Bar Council, Supreme Court Bar and Attorney General for assistance. The court summoned the president and the prime minister through the principal secretary.
Later, the court adjourned the hearing till next week.
Earlier on Wednesday, the top court fixed pleas against Supreme Court (Practice and Procedure) Bill 2023 for hearing on April 13 (Thursday). The bill had, earlier, been passed by both houses of the parliament for the second time after amendments proposed by PML-N MNA Shiza Fatima and was again sent to President Dr Arif Alvi for assent.
Federal Law Minister Azam Nazir Tarar had said the opposition showed ignorance over the matter adding that the president left a negative comment on the parliament’s prerogative to legislate. “Mr Alvi should have avoided this,” he added.
The bill aims at curtailing the powers of CJP regarding taking suo motu notice under clause (3) of Article 184 of the constitution. If the bill was signed into law by the president, it would give the power of taking suo motu notice to a three-member committee comprising senior SC judges including the CJP.
It further stated that any matter invoking the exercise of original jurisdiction under clause 3 of Article 184 of the constitution should first be placed before the committee for examination, and if the committee reckoned that if a question of public importance concerning enforcement of any of the fundamental rights was involved, it should constitute a bench comprising not less than three judges of the apex court that might include the members of the committee for adjudication of the matter.
