News Analysis: These changes are long overdue, say lawyers

KARACHI: Lawyers on all sides of the political spectrum see the Supreme Court (Practice and Procedure) Bill, 2023 as a necessary intervention -- but stand divided as to the ‘timing’ of the law.

Speaking to the necessity of the law passed on Wednesday, lawyer and TV talk show host Muneeb Farooq says that: “These amendments should have been done a long time back. A lot of people are confusing this as something being taken away from the Supreme Court or the sting or Article 184(3) being taken away. That is not the case. The nature, extent and scope of Article 184 stay the same; it’s just the procedure that is being changed. Now instead of the chief justice alone it’ll be the committee with the CJ and two senior-most judges that will decide matters under Article (3).”

For lawyer Jahanzeb Sukhera, the bill “provides a much desired regulation of the processes of the Supreme Court. A collegiate body deciding the constitution of benches and allocation of cases is likely to make more reasonable and less controversial decisions. Also, three judges deciding whether or not a matter meets the jurisdictional requirements for suo-motu proceedings will increase the likelihood of proper exercise of the power.” In fact, Sukhera says that the law should “perhaps, include five judges on the committee, instead of three, to further temper the decision-making process of the court.”

Lawyer Abuzar Salman Khan Niazi agrees that “The government is trying to do what should have been done a long time ago” but cautions that “the way they are doing this is problematic. Most of the amendments proposed by them require a constitutional amendment. For instance, appeal against a suo-motu order can only be provided by amending the constitution, not through a simple act of parliament.”

Responding to criticism that this law is restricting the SC’s powers, lawyer Salaar Khan says that: “The Supreme Court, under the constitution, is all Supreme Court judges, not just the chief justice. So, whatever this law takes away from one individual, it gives to the rest of the court. This relates particularly to the power to constitute benches and initiate suo-motu proceedings. To that extent, one can argue that this law, in fact, expands the jurisdiction of the court.”

Talking about the way the reform law has been misconstrued, Muneeb Farooq says that “the matter of Article 191 has also been misread, with people saying the SC has the authority to make its rules. What they don’t read is that the article also says ‘subject to constitution and law” -- if a law is made by parliament then the SC cannot make rules in contravention to that.”

On this, lawyer Abdul Moiz Jaferii also agrees that it “is within the legislature’s competence to enact laws to regulate the practice and procedure of the Supreme Court. Article 191 of the constitution allows for exactly such ordinary regulatory legislation.” He adds that “these provisions were being demanded for years by the bar as well as lately from within the court itself. On the political front, it has consistently been argued that the court tells every authority which comes before it that there is nothing such as unfettered or arbitrary power, and to structure their discretion where it is afforded to them. Yet the court itself does nothing to add a required structure to the exercise of its own power.”

Lawyer Taimur Malik feels that while “the contents of the bill are in line with the longstanding demands of the legal profession, there are valid concerns in relation to the timing and manner in which the bill is being pushed through as well as the lack of debate in parliament (or with other stakeholders) regarding the proposals contained in the bill. Moreover, the legislation could have been better worded, in particular Clause 7 of the bill, and it could have covered additional aspects as well if this was not being passed in haste.”

Abuzar Salman Niazi too feels that the “timing of the amendment is questionable” and that the government is doing this “solely to pressurize the CJP. The government-led parties are in no position to contest elections. Khan is super popular and they expect an electoral loss. Thus, they want the Supreme Court to do something the constitution doesn’t envisage. The only mode available for the government is to pressurize the judges”.

In a tweet former president of the Sindh High Court Bar Association Barrister Salahuddin Ahmed gives his take on this: “While I agree elections should be held in time, [I] strongly disagree with those who think SC reform is secondary to elections. Considering the role of our SC for [the] last 75 yrs in obstructing [and] distorting democracy, judicial reform is [an] essential prerequisite to free [and] fair elections.”

On the matter of timing, Salaar Khan says that “here, we are faced with competing principles -- and in such instances, we must side with the sovereignty of parliament. The entire point of pushing for elections is, at its heart, a recognition of this.”

Muneeb Farooq adds that “the government may have been in a reactive mode and the timing may not be great but the intent cannot be questioned.” He also says that “We should not be bogged down by saying that this should not be done because it somehow serves the interests of one side or the other.”

Speaking about the validity of the law, Abuzar Salman Niazi feels that “a simple act of parliament to regulate the judiciary with respect to procedural and substantive law might be in conflict with the independence of the judiciary which is a salient feature of our constitution. The courts may strike it down if reviewed or challenged by the court.”

Acknowledging the possibility of this being taken up by the court, Muneeb Farooq says that, regardless, “it will not be easy to do that. Even if the president does not put his assent to the law, he can only delay it and that’s it. Add to that the further division in the SC where two judges now feel that every matter related to Art 184(3) needs to be put on hold while the legislation is in process.” On the challenge in court, Sukhera says that “If this law doesn’t survive judicial scrutiny, the court may like to use this template for rules that it may make itself.”

Responding to whether a simple act of parliament can make such a law or not, Salaar Khan says that “There are arguments to be made for both sides on the question of whether or not parliament could pass such a law through ordinary legislation. But, to the extent of expansion of the jurisdiction of the court, parliament is clearly competent to legislate. Whether or not ordinary legislation can create another level for appeals is, perhaps, more contentious -- though there is a compelling case for that, too.”

Lawyer Reema Omer, in a Twitter thread, has responded to criticism levelled at the bill by saying that “While this bill can be improved, considering it an ‘attack on the independence of the judiciary’ is baseless. And comparing it with Israel’s judicial reforms bill...is entirely absurd and disingenuous.”

As for critique regarding the ‘political’ nature of the law, Salaar Khan says: “There does seem to be a belated inclusion [in the bill] of relief granted to people affected in proceedings under Art 184(3). Whatever presumptions there may be as to motive, it is worth noting that the criticism for a lack of an appeal in matters such as lifetime disqualifications has been consistent. Its inclusion in the present bill, of course, raises questions as to its motive. But what good are principles such as the supremacy of parliament if they are only invoked when favourable?”

Moiz Jaferii adds: “There was a huge issue with urgent cases not being listed in the court. This law attempts to address it. It addresses the ability to choose a counsel of your choice in review, a long-standing issue for litigants. It also critically adds structure to the formation of benches and recommends a decision by the collegium. Only a dictator would consider this a limitation upon power.”