Govt asks SC to reject pleas against CJP powers bill

ISLAMABAD: The Supreme Court (SC) was requested on Saturday to constitute a full court for hearing the petitions challenging the Supreme Court (Practice and Procedure) Act, 2023 that aims at clipping the powers of the chief justice of Pakistan (CJP) of suo motu jurisdiction as well as the constitution of benches.

The Federation filed a civil miscellaneous appeal (CMA) in the apex court, stating that “already controversy regarding the formation of benches is rampant and can only be put to rest by the constitution of a full court for hearing the petitions”.

It was submitted that the public trust was foremost for securing the independence of the judiciary and to gain such trust, it was imperative that justice should not only be done but seen to be done.

“Any course which will jeopardise the public trust will undermine the authority of the court and will weaken the whole state,” it added.

The Federation submitted that in Malik Asad case (PLD) 1998 SC 161, CJP Iftikhar Muhammad Chaudhry Case (PLD) 2010 SC 61 and Justice Qazi Faez Isa case, 2019 SCMR 1875, the question before the court also revolved around the independence of judiciary and in all the three cases, full court was constituted.

“The importance of the case in hand is not in any way less but equally critical as it requires determination of powers of legislature to regulate practice and proceed of judicial organ of the state, on one the hand, and a constitutional command to secure independence of judiciary, on the other,” it further contended.

“To deviate from the precedent, the law mentioned will cause unnecessary controversy, though may be unfounded, and will not be conducive for the image of both organs of the state,” the government submitted.

Apart from the petitioner, Muhammad Shafay Munir, Chaudhry Ghulam Hussain had challenged the constitutionality of federal legislation, being the Supreme Court (Practice and Procedure) Bill, 2023 (“Bill”). Earlier, on April 13, an eight-member bench of the apex court, headed by Chief Justice Umer Ata Bandial, had stayed the operation till further order, on the bill that aimed at curtailing the powers of suo motu jurisdiction of the CJP as well as constitution of benches.

Other members of the bench included Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Sayyed Mazahir Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Mrs Ayesha A Malik, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed.

The same bench will resume hearing on May 8 in the petitions.

Separately, another constitutional petition was filed in the Supreme Court (SC), praying to strike down the Supreme Court (Practice and Procedure) Act 2023 passed by the parliament by a simple majority, and declare it as without lawful authority and without constitutional mandate.

An advocate of the Lahore High Court, Mudassar Hassan Jura, filed the petition under Article 184(3) of the Constitution making the Federation of Pakistan through the secretary Law and Justice Division, Ministry of Law and Justice, law minister, Ministry of Law and Justice and principal secretary to the prime minister of Pakistan as respondents.

Filed through Advocate Hassan Irfan, the petitioner prayed the apex court to declare the Supreme Court (Practice and Procedure) Act, 2023 as without lawful authority, void abinitio and without constitutional mandate.

He prayed that the impugned Act might kindly be declared ultra vires the constitutional provisions, in particular contrary to the articles of the Constitution 9, 18, 19, 19A, 23, 24, 25 and 142 read with Article 70 and Entry 55 of Federal Legislative list, Article 191(c).

The petitioner prayed that the impugned Act might be struck down being inconsistent with constitutional mandate and violative of basic structure of the Constitution, besides praying that during the pendency of the petition, the impugned Act be suspended.

The petitioner questioned as to whether the “Constitutional rule making power” conferred by Article 191 of the Constitution (with at least 2/3rds majority), and exercised by the Supreme Court, can be taken away, nullified, amended or rescinded by a sub-constitutional legislation (Act of Parliament), passed by a simple majority of the parliament.

Similarly, he questioned as to whether the current assembly had the power to amend the Constitution as it neither comprises full assembly strength, nor 2/3rds membership of total strength; and whether such an Assembly could take away or amend or restrict constitutional powers through a law without going through the route provided by the Constitution itself in Articles 238 and 239.

The petitioner submitted that the “constitutional rule making power” conferred by Article 191 of the Constitution, and already exercised by the Supreme Court, cannot be taken away, nullified, amended or rescinded by a sub-constitutional legislation (Act of Parliament), which is passed by a simple majority of the parliament.

“The benches of the Supreme Court are constituted by the Chief Justice(s) of Pakistan in light of Order XI of Supreme Court Rules, 1980 from 1980 to date (43 years) and is a “Constitutional Convention” and has become part of the “Constitutional law” and has the same binding effect as a Constitutional provision, which cannot be abolished by a sub constitution legislation,” the petitioner contended.

He submitted that the Supreme Court (Practice & Procedure) Act, 2023 is against, and will affect, the “constitutional balance” established by the Constitution between the three pillars of the state through the will of the people of Pakistan.

“Constitutional powers are conferred by at least 2/3rds majority of the parliament, even if they are of rule making, have the force of the Constitution and are superior to any law circumventing such powers, passed by a simple majority, and therefore cannot be taken away by a sub-constitutional legislation,” the petitioner submitted.