President returns SC bill clipping CJP powers back to parliament, again

ISLAMABAD: President Arif Alvi Wednesday returned the Supreme Court (Practice and Procedure) Bill 2023, to parliament once again in less than two weeks as the government aims to clip the chief justice's suo motu and bench formation powers through the legislation.

In a notification, the president said the "competency of legislation and validity of the bill is subjudice before the highest judicial forum of the country.

"In deference to the same, thereto no further action is required."

Despite the president's refusal to sign the bill, it will become law on April 20, according to Law Minister Azam Nazeer Tarar. 

The bill was passed by both the National Assembly and the Senate last month amid a standoff between the government and the judiciary over elections in Punjab and Khyber Pakhtunkhwa, after which it was sent to the president for assent.

However, President Alvi returned the bill for reconsideration to parliament, stating that it prima-facie "travels beyond the competence of parliament" and could be assailed as "colourable legislation".

The government then got the bill passed by a joint session of parliament on April 10 despite strong protest from the Pakistan Tehreek-e-Insaf (PTI), after which it was again sent to the president to sign.

Under the Constitution, if the head of the state does not give his approval to a piece of legislation within 10 days of it being passed by a joint session of parliament, it would be deemed to have been given. This was also confirmed by Law Minister Tarar on Monday. 

However, an eight-member bench of the Supreme Court, while hearing petitions challenging the bill ruled on April 13 that even if the president was to give his assent, the bill would not be acted upon in any manner till further order.

The bench was headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprised Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

In its eight-page ruling, the bench stated, "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."

The SC larger bench stated that an interim measure ought to be put in place in the nature of an anticipatory injunction.

Regarding the SC order, the law minister, while speaking to Geo News earlier this week, said the matter of implementation would be "seen later".

The bill

The Supreme Court (Practice and Procedure) Bill, 2023 aims to give the power of taking suo motu notice to a three-member committee comprising senior judges including the chief justice. It also aims to have transparent proceedings in the apex court and includes the right to appeal.

Regarding the constitution of benches, the bill 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. It added that the decisions of the committee would be taken by a majority.

Regarding exercising the apex court’s original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the committee.

The bill says that if the committee is of the view that a question of public importance with reference to the 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 SC of Pakistan which may also include the members of the committee, for adjudication of the matter.

On matters where the interpretation of the Constitution is required, the bill said the committee would compose a bench comprising no less than five apex court judges.

About appeals for any verdict by an apex court bench that exercised Article 184(3)'s jurisdiction, the bill said that the appeal will be referred within 30 days of the bench’s order to a larger SC bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

It added that this right of appeal would also extend retrospectively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the SC (Practice and Procedure), Bill 2023, on the condition that the appeal was filed within 30 days of the act’s commencement.

The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, it 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 bill said that its provisions would 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 high courts.