Constitutionality of bill reducing CJP's powers to be examined by Supreme Court

On Thursday, Justice Umar Ata Bandial stated that the Supreme Court needed to assess whether pending legislation, which seeks to limit the powers of the Chief Justice of Pakistan (CJP), violates the Constitution. This came after the federal coalition declined the Supreme Court's involvement in hearing petitions against the legislation.

During an eight-judge bench hearing, the CJP emphasized the importance of judiciary independence and expressed respect for the parliament. The bench heard three petitions challenging the Supreme Court (Practice and Procedure) Bill 2023, which aims to remove the CJP's powers to take suo motu notice in an individual capacity.

The bill was initially passed by both houses of parliament and sent to the president for his approval. However, the president returned it, stating that the proposed law exceeded the parliament's competence. The bill was later passed with certain amendments during a joint sitting of parliament, accompanied by protests from PTI lawmakers.

The bench, including Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha A. Malik, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed, issued notices to political parties, the federal government, the Attorney General for Pakistan, the Pakistan Bar Council, and the Supreme Court Bar Association of Pakistan, among others. The hearing has been adjourned until the following week.

Court proceedings

During the hearing, Advocate Azhar Siddique, Advocate Imtiaz Rashid Siddiqui and Attorney General for Pakistan (AGP) Mansoor Awan appeared in court as the petitioners' lawyers. Advocate Imtiaz presented his arguments, stating that the case held a lot of importance in the current scenario. He emphasized that since the National Assembly was restored in April last year, the political divide and crisis had increased.

The federal government and the Election Commission of Pakistan (ECP) are not willing to hold polls in Punjab and KP. The SC had taken a suo motu notice last month and instructed the government to hold elections, but a deeper crisis emerged after the apex court's orders, and the government and members of parliament were held responsible for it.

The lawyer argued that the proposed legislation was an attempt to interfere with the independence of the judiciary, and the bill was unconstitutional. The lawyer further contended that the SC had previously issued various decisions pertaining to the independence of the judiciary and highlighted that the apex court could review the actions of every institution of the state.

 The present case, the lawyer went on, fell under Article 184(3) of the Constitution in which the court had superior jurisdiction. He requested the bench to stop the law ministry from notifying the bill into law until the case was wrapped up.

A joint statement by a federal coalition rejects the formation of a bench

The federal coalition issued a joint statement today, rejecting the formation of an eight-member bench by the apex court. They deemed the bench "controversial" and called the move "unprecedented" and "unacceptable" since the legislative process was not yet complete. Notably, Justices Qazi Faez Isa and Sardar Tariq Masood, the senior-most judges after the chief justice, were absent from the bench. Justice Isa had previously ruled that the CJP did not have the power to form special benches or decide their members, along with Justice Aminuddin. The order was later recalled by a six-member larger bench, and Justice Isa later claimed that the bench did not "constitute a constitutional court."

The ruling parties' joint statement argued that the top judge's move to form the controversial bench was unprecedented in Pakistan's history, which would destroy the credibility of the highest court of the country and render the constitutional process of justice meaningless. The statement emphasized that the bench was a testament to the division of the SC and expressed concern that judges from smaller provinces such as Balochistan and Khyber Pakhtunkhwa were not included.

The statement also cited earlier judgments of Justices Isa and Khan, who had objected to biased and dictatorial behavior and the formation of special benches. It contended that the legal fraternity had opposed the apex court's decision to take up petitions against a proposed law. The coalition government expressed its intent to resist any attempts to take away the authority of the parliament and interfere in its constitutional scope, concluding that there would be no compromise on the authority of the Parliament in the light of the Constitution of Pakistan.

Pakistan Bar Council calls for a boycott of courts in protest against the controversial bench

The Pakistan Bar Council (PBC) has issued a statement criticizing the formation of a "one-sided and controversial bench" to address challenges to the SC (Practice & Procedure) Bill. The PBC said that an attempt to prevent the passage of the legislation, which it believes meets the demands of bar councils and associations across the country, would be opposed.

The PBC announced a complete boycott of the courts to protest the development, with representatives set to meet on April 17 to discuss the issue. In an interview, Hasan Raza Pasha, who heads the PBC's executive committee, suggested that the bench was formed in haste and that senior-most judges were not included, deepening cracks within the apex court.

Outside the Supreme Court building, members of the legal fraternity held placards calling for elections to save the country, prompting accusations from PTI leaders on Twitter that the PBC was "pro-regime."

Challenges to SC (Practice & Procedure) Bill

On Tuesday, Mohammad Shafay Munir filed a petition challenging the SC (Practice & Procedure) Bill, 2023, followed by Raja Amer Khan and Chaudhry Ghulam Hussain on Wednesday. The petitioners argued that the entire process of endorsing and passing the bill was done with mala fide intentions and therefore should be declared null and void.

The federal government, law secretaries, and principal secretaries to the premier and president were named as respondents in the case. Advocate Imtiaz Rashid Siddiqui represented petitioner Khan, Advocate Mohammad Azhar Siddique appeared on behalf of petitioner Hussain, and Advocate Mohammad Hussain represented petitioner Munir.

The petitioners requested the SC to suspend the bill during the pendency of the petition and directed President Dr. Arif Alvi not to assent to the bill so that it could not become an act of parliament. They argued that the federal government could not create any law that interferes with the functioning of the apex court or its judges, including the CJP, under the Constitution.

The petitions stated that the impugned bill is an unconstitutional measure that violates the constitutional mandate. The federal government has committed a blatant violation of the Constitution. The CJP is the centrifugal force and the entire fabric of the apex court is webbed around it. The independence of the judiciary and each of the judges and its CJP is declared as an aim enunciated in the preamble to the Constitution. The same is a part of the objective resolution and thus a substantive part of the constitution.

The petitions emphasized that the SC, led by the CJP with its judges, must be independent of all executive or legislative transgressions to perform their constitutional obligations in providing justice to the people of Pakistan. The function of the judicial organ of the state, the judges or CJP, or their independence as provided in the constitution, cannot be compromised.

The petitioners argued that it is unimaginable that the office of CJP, with respect to constitutional powers, could be regulated by the parliament. The parliament could not make a law that was inconsistent with the referred provisions of the Constitution. If any appeal could be allowed by legislative enactment, the same could only be available through an amendment to the Constitution.