Parliament, SC on collision course

ISLAMABAD: The parliament and judiciary arrived at a standoff on Thursday as the ruling alliance rejected the eight-member bench constituted to hear the petitions challenging the Supreme Court (Practice and Procedure) Bill 2023.

The Supreme Court, on the other hand, while exercising ‘anticipatory injunction’, stayed the operation on the Supreme Court (Practice and Procedure Bill) 2023 aimed at curtailing the powers of the Chief Justice of Pakistan to take suo motu notice and constitute benches.

The PDM coalition government released a statement, which rejected the eight-member bench, terming it controversial. The allies in the federal government vowed to resist attempts to take away parliament’s authority and to interfere in its constitutional scope.

Earlier this week, the Supreme Court (Practice and Procedure) Bill 2023 was passed by a joint sitting of parliament after President Dr Arif Alvi returned it. Following the development, an eight-member bench was constituted to hear petitions arguing that the “concept, preparation, endorsement and passing of the Supreme Court (Practice and Procedure) Bill 2023 is an act tainted with mala fide”.

Subsequently, four separate petitions were filed by Raja Amer Khan, Chaudhry Ghulam Hussain, Mohammad Shafay Munir and Khwaja Tariq Rahim among others, under Article 184(3) of the Constitution, asking the top court to set aside the bill.

The ruling coalition statement termed the development “unprecedented” as the pleas were admitted even before the completion of the legislative process. It said the move was equivalent to sabotaging the credibility of the country’s highest court, making the constitutional process of justice “meaningless”.

“This bench itself is a testament to the division of the SC, which once again supports the earlier stated position of the ruling parties,” the statement said. It said that the ruling alliance considers this an “attack” on parliament and its authority.

The statement lamented the formation of the “controversial” bench — which does not include any of the judges who raised questions on the powers of the CJP -- and the non-inclusion of judges from Balochistan and Khyber Pakhtunkhwa. It said that attempts to snatch the authority of parliament and to interfere in its constitutional domain will be resisted. “No compromise will be made on the authority of parliament in the light of the Constitution of Pakistan,” the coalition partners maintained.

They said that the top court judges — Justice Qazi Faez Isa and Justice Jamal Khan Mandokhail — had in their earlier judgments expressed their objection to the “one-man show”, biased and dictatorial behaviour, and the formation of special benches. “With the formation of the eight-member controversial bench, the facts stated in the judgments of these honourable judges have become more clear,” the statement said.

“The constitution of the controversial bench in haste and fixing the bill for hearing, apart from the will and intent, also clearly expresses the decision to come which is sad and tantamount to murder of justice,” the ruling alliance maintained.

Separately, while addressing a press conference along with ruling alliance’s leaders Qamar Zaman Kaira, Amin-ul-Haq and others, Law Minister Azam Nazeer Tarar said that the bill could be challenged by the citizens after its legislation, adding that the entire situation is “alarming” as the petitions against the “premature” bill are being heard by a “selective bench”. He said that the bench does not comprise two senior-most judges and those placed on number five, seven, and eight according to the list of seniority are not part of the bench. The bench is constituted on a “pick and choose” basis, the law minister said, adding that there is a conflict of interest as the bill was passed against the chief justice and he himself was leading the bench.

Tarar said that all the bar councils unanimously rejected the formation of the bench. “Pakistan Bar Council, Sindh Bar Council, Balochistan Bar Council, Punjab Bar Council, Islamabad Capital Territory Bar Council and Khyber Pakhtunkhwa Bar Council boycotted the eight-member bench constituted to hear the pleas against the premature bill,” he added.

Tarar said the perception that a rift has been created between parliament and the judiciary is not true because of the former. He said parliament has the right to legislate as per law and the Constitution for the interest of the people and to make the institutions strong. Tarar further added that all the coalition partners agree that it is not the right time to take up pleas against the bill as it had not yet been legislated.

Qamar Zaman Kaira said that the rifts among institutions are leading the country towards a bad situation. “We only want the benches to be constituted in a balanced and proper manner.”

The National Assembly, through a resolution with a majority vote, also rejected the 8-member bench and demanded its immediate dissolution. The House also expressed concern over the interference of the Supreme Court in the constitutional and legislative authority of parliament. The resolution, moved by PPP legislator Agha Rafiullah, noted that the non-inclusion of two judges from Balochistan and Khyber Pakhtunkhwa itself shows the partiality of the bench.

The resolution stated that according to the Constitution, it is only the prerogative of parliament to legislate and that the house sees with greater concern the interference of the court in parliament’s authority. It said that the recent controversial decisions of the court have not only created a constitutional crisis.

The Supreme Court, meanwhile, stayed the operation on the bill that aimed at curtailing the powers of the Chief Justice of Pakistan to undertake suo motu notice and constitute benches. The eight-member larger bench, headed by Chief Justice Umar Ata Bandial, heard the petitions, challenging the Supreme Court (Practice and Procedure) Bill 2023, passed by the joint session of the parliament. Other members of the bench are Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ms Ayesha A Malik, Justice Syed Hassan Azhar Rizvi and Justice 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,” the court held in its written order.

“In our view, the facts and circumstances presented here are 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 and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision,” said the order.

The court held that 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 court issued notices to the respondents in all three petitions besides issuing notices to the Attorney General for Pakistan, Supreme Court Bar Association through its president and the Pakistan Bar Council through its vice chairman.

Similarly, the court also issued notices to Pakistan Muslim League-Nawaz (PMLN), Pakistan Peoples Party Parliamentarians (PPPP), Pakistan Tehreek-e-Insaf (PTI), Jamiat Ulema-e-Islam-Fazl (JUIF), Jamaat-e-Islami (JI), Awami National Party (ANP), Muttahida Qaumi Movement-Pakistan (MQMP), Balochistan Awami Party (BAP) and Pakistan Muslim League-Q (PMLQ) with the direction that they may if so desire, appear through duly instructed counsels and adjourned the hearing until May 2 at 11:30 am.

“It appears that parliament in joint sitting reconsidered the bill on 10.04.2023 and the same day passed it, it seems with some amendments,” says the order, adding that the bill so passed has been or is being presented to the president for his assent. Clause (3) of Article 75 provides as follows: “When the president has assented or is deemed to have assented to a bill, it shall become law and be called an act of Majlis-e-Shoora (Parliament)”. The court noted that the first point to note is that the bill has, in terms of the legislative processes set out above, reached the stage when it can be said with complete certainty that it reflects in entirety the ensuing Act of Parliament, the short title of which will be the Supreme Court (Practice and Procedure) Act 2023.

The court held that reason is grounded in clauses (2) and (3) of Article 75. The march towards becoming a statute, and the passage from Bill to Act, is (at most) merely a matter of time. “Neither the president nor (so it would seem) parliament itself can change its content in the slightest nor divert this course”, says the order, adding that it follows that though the Bill is not yet law, it is nonetheless, with exactitude, that what will have the force of law, when the Act comes into being. Therefore, it can be considered and examined even at this stage.

The court held that it is possible to even now, as the Bill moves seamlessly through time towards becoming the Act, consider whether what Parliament seeks to do passes muster constitutionally. “We are of the view that such a consideration can be carried out prima facie and tentatively,” the court maintained, adding that the bill prima facie seems to be open to question on the constitutional plane on several grounds which, inter alia, raises issues of a serious nature in relation to the independence of the judiciary.

Such independence, the court held, is deeply rooted in the fabric of the Constitution and forms an integral part of the structure of fundamental rights. Indeed, it is itself one such right and any legislative effort that interferes with or impinges on, the same should be subjected to close scrutiny.

The court noted that there appears to be no authorisation by or under the Constitution, let alone an express one, as allows parliament to confer an appellate jurisdiction on the Court of the sort now sought to be created. “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,” said the order. The order held that issues of public importance with regard to the enforcement of fundamental rights are involved which require consideration and decision by the court.

“This brings us to the question of whether it would be appropriate to make any interim order in relation to the present matter. In Dr Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 the Full Court (17 member Bench) observed (at para 164, pg. 451) that “ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc,” said the order.

“Accordingly, in our view, an interim measure ought to be put in place, in the nature of an anticipatory injunction,” the court held, adding that the making of such an injunction, to prevent the 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.

The order held that whatever can be done by legislative endeavour under Article 191 is something that the court can itself do in the exercise of the rule-making power conferred upon it. “This is one of the contexts in which we are called upon to examine various provisions of the bill,” said the order, adding that the bill, in clauses 2 to 4 (set to become correspondingly numbered sections), seeks to regulate the manner in which causes, matters or appeals before the court are to be heard and, in particular, the benches that are to hear and decide the same.

On first impression, the order noted, the bill appears to be premised on the approach that Article 191 purportedly sets up a hierarchy in relation to the practice and procedure of the court. “On this view the Constitution is obviously at the top, followed by “law” and then the rules made by the court itself,” the order said, adding that this hierarchical structure prima facie subordinates the rules made by the court to “law” and therefore, the Supreme Court Rules 1980 to the incoming act. The court noted that the regulation of the matters laid out in clauses 2 to 4 purports to trump anything contained in the Rules. Similarly, the order observed that the bill seeks to reinforce this in Clause 8 by giving overriding effect to its provisions over not only any “rules” but also any judgment of any court, including the apex court. “Prima facie, this approach is a serious encroachment upon, interference with and intrusion into the independence of the judiciary,” said the order, adding that prima facie there is another and more fundamental aspect that ought, even at this preliminary stage, be kept in mind for understanding Article 191.

The court held that the very existence of any such power needs to be determined, and not simply its application to this or that situation, adding that it is not a matter of the power, in a given case, being exercised benignly or for purposes claimed as salutary (as appears to be professed for clauses 2 to 4).

“That is not the essence of the matter,” says the order, adding that for the next interference (i.e. regulation) may be less benign, and the next even more removed from benignity, while the next may slip positively into hostility. “A question of constitutional power can hardly be made to depend on a question of more or less.”

The court holds that interference with fundamental rights is kept beyond legislative and executive incursion unless expressly permissible (in the shape of articulated reasonable restrictions).

Any intrusion in the practice and procedure of the apex court, even on the most tentative of assessments, would appear to be inimical to the independence of the judiciary, no matter how innocuous, benign or even desirable the regulation may facially appear to be. Prima facie therefore, when the Bill and the Act that is soon to come into being, are examined on the anvil of the most fundamental principles that underpin the Constitution, it can be regarded as seriously wanting in constitutional competence.

The bill also (in clause 5, soon to become s. 5) purports to confer a new appellate jurisdiction on the court in the exercise of legislative power under Article 191. However, it is highly doubtful whether Parliament can do this since a right of appeal is not merely a matter of practice or procedure but is a substantive right.

It would therefore seem, at first sight, that the appellate jurisdiction now sought to be conferred is beyond any competence conferred by Article 191, whether on the court itself or any “law’’ purported to be made by parliament. If the conferment of appellate jurisdiction is considered in terms of a legislative competence available otherwise to parliament, one must turn to entry No 55 of the Federal Legislative List. On a tentative examination of this constitutional grant, it would seem that it, firstly, expressly excludes the Supreme Court from the power of parliament to legislate as regards the “jurisdiction and powers” of courts in relation to the List, and secondly, allows for the enlargement of the jurisdiction of the apex court only if it is “expressly authorised by or under the Constitution”.

Earlier, arguing before the court, Imtiaz Rashid Siddiqui, advocate, submitted that the independence of the judiciary was a principle of fundamental constitutional importance, deeply grounded in the structures of the Constitution.

Referring in particular to the Supreme Court, the counsel emphasised the centrality of the position of the Chief Justice of Pakistan to the apex court. The counsel read out the various clauses of the bill and submitted that in terms of the legislative process, with particular reference to Article 75(3), the bill had travelled beyond the stage of being at the legislative stage.

It had, rather, taken the position of a proposed Act that was bound to come into being with the efflux of time. He submitted that the present petitions were maintainable and could not be faulted as premature.

It was submitted that the passage of this legislation was defective at both the executive stage when the bill was conceived and approved by the cabinet, and thereafter at the legislative stage in terms of its passage through the two Houses of Parliament and then, after its return by the president, its reconsideration in a joint sitting. He further submitted that the reasons given by the president for returning the bill were not properly considered. Hence he submitted that the legislation was a fraud on the Constitution.

The counsel, referring to clauses 2 to 4 of the bill, submitted that a basic objection to the constitutionality was that it sought to displace the chief justice and place the powers that lay with him alone with another body, the committee sought to be set up. It was submitted that the rule-making power of the Supreme Court under Article 191 had been exercised and could not now be displaced by the legislation of the sort contemplated.

In this context, the counsel also referred to the power of each organ of the state, i.e. the legislative, executive and judicial branches, to exclusively regulate its own internal matters and procedures. It was submitted that the bill was an intrusion into a sphere made exclusive to the court and hence was ultra vires of the Constitution. That field already stood occupied by the Supreme Court Rules 1980 and, therefore, could not now be entered into by the legislature.

As regards the appellate jurisdiction sought to be conferred on the apex court, the counsel submitted that it was beyond the competence of parliament to do so, either in terms of Article 191 or entry No 55 of the Federal Legislative List.