CJP Umar Ata Bandial adjourns hearing on a set of petitions against the Supreme Court (Practice & Procedure) Act, 2023, till next week

ISLAMABAD, June 01 (SABAH): Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on Thursday adjourned the hearing on a set of petitions against the Supreme Court (Practice & Procedure) Act, 2023 — aimed at limiting the powers of the top judge — till next week after Attorney General for Pakistan (AGP) Mansoor Usman Awan said the federal government had decided to review the legislation.

The hearing — which was conducted by an eight-member larger bench comprising the CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Mrs Justice Ayesha A. Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed — was put off shortly after it commenced.

The same bench had on April 13 suspended the bill before it was enacted. However, on April 21, the bill did become law even as its implementation had been halted by the court.

The law envisages a three-member committee, comprising the CJP and two senior-most judges, which will via majority form benches as well as decide when to take suo motu action — powers that currently reside with the CJP alone.

It also adds to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgment in suo motu cases. This provision will apply retrospectively, through which legal observers believe former prime minister Mian Muhammad Nawaz Sharif and Sardar Jahangir Khan Tareen will be able to file appeals to their lifetime disqualifications under Article 62(1)(f) of the Constitution

Meanwhile, after the top court suspended the SC procedures law, the parliament passed another version of it, removing sections related to curtailing the CJP’s powers but including those on the court’s review jurisdiction in suo moto cases. This new law, titled ‘The Supreme Court (Review of Judgments and Order) Act 2023’, was enacted last week.

The law “aimed at facilitating and strengthening the Supreme Court in exercising its powers to review its judgments and orders” was tabled in the National Assembly on April 14 and passed the same day, while the Senate approved its passage on May 5 amid protests by the opposition.

At the outset of Thursday’s proceedings, AGP Awan came to the rostrum and said that the law — pertaining to the CJP’s suo motu powers — dealt with several other aspects as well. “We have two laws,” he said, referring to the Supreme Court (Practice & Procedure) Act, 2023 and the Supreme Court (Review of Judgments and Order) Act 2023. “Both the laws have similarities in the sections of review and hiring a lawyer.”

AGP Awan highlighted that the Supreme Court (Practice & Procedure) Act, 2023 was more extensive and included provisions related to the internal affairs of the court.

“It is necessary to arrive at a solution regarding which of the two legislations can be relied upon,” he stressed.

Here, CJP Bandial said, “We are happy that the government and Parliament are bringing amendments to overlapping laws.

“The government should consult with the SC when making laws related to the judiciary,” he added, pointing out that sections 4 and 6 were similar in the review judgments law.

The top judge further maintained that the Parliament could be told to look into the harmonisation of both laws. “We welcome your proposal.”

AGP Awan also said that the legislation done on the SC’s administrative matters did not take into account the judiciary’s advice. “Amendments to the law will now be made with the Supreme Court’s consultation. Other than the legislations, advice will also be sought on other matters.”

However, following the hearing, AGP Awan said that his above-mentioned comment was misquoted.

At one point during the hearing, Advocate Imtiaz Rashid Siddiqui — who was representing once of the petitioners — came to the rostrum and recalled that the court had asked for the record of the parliamentary proceedings in its previous hearing.

At that, the CJP said, “We found out through the newspaper that they have declined to present the record but we have the record.

“All records are present on the Parliament’s website. We have taken the record from the Parliament’s website,” he added.

Meanwhile, commenting on the AGP’s remarks, Justice Mazhar said that it was important to see if the issue of similar laws could be solved. “If the laws are similar, it will be a waste of time to hear petitions regarding full court.”

Here, the AGP suggested that the matter could be sent to the Parliament for discussion. However, CJP Bandial interjected and said, “Don’t send it to the Parliament. We will look into it when the government or the Parliament give advice regarding it.”

He then directed Awan to seek instructions from the government and adjourned the hearing till next week. “An appropriate order will be issued later today.”

Justice Bandial also apologised to all the lawyers who had traveled to the apex court from Sindh and other areas. “The weather here is pleasant, we hope you will enjoy,” the AGP also said. The hearing was then adjourned till next week.

Conversely, the Pakistan Muslim League-Quaid (PML-Q) has submitted in its written response on Thursday that the Supreme Court (Practice and Procedure) Act, 2023 seek “to uphold the ‘Rule of Law’, promote ‘Judicial Independence’ and ensure ‘Access to Justice and Fair Trial’ guaranteed under the Constitution of Pakistan, 1973,” adding that the petitions challenging it “…contrary to such lofty goals, if granted, the petition will actually undermine each of these venerated ideals”.

Calling for a dismissal of the petitions filed against the law, it argued that “under Section 2 of the 2023 Act, the lone responsibility nay burden of the Hon’ble CJ for the constitution of benches in all matters has been given relief so that it is shared equally with the two senior-most judges of the SC.”

“Pursuant to Article 191, the Parliament clearly has the right to legislate on matters pertaining to the practice and procedure of the SC,” it added, stressing that “the Parliament has the right to enact the subject legislation and has done so strictly in accordance with the law and the Constitution.”

“The 2023 Act is constitutional and will only serve to promote the ‘Independence of the Judiciary’, ‘the Rule of Law’, the ‘Right to Access of Justice and Fair Trial’ as guaranteed under the Constitution of the Islamic Republic of Pakistan,” the PML-Q stated.

Moreover, it submitted that the committee’s use of suo motu powers to hear cases will enhance the public’s trust in the judiciary.

“Former Chief Justices Iftikhar Chaudhary, Gulzar Ahmed, Saqib Nisar used their powers proactively, and the results came in the form of Steel Mill, PKLI and Nasla Tower,” PLM-Q’s response said adding that such consequences could have been avoided by legislation such as the one under dispute.

Meanwhile prior to the hearing on Thursday, the PTI filed its response pertaining to the law aimed at curtailing CJP’s powers and demanded that the legislation should be declared “ultra vires” and subsequently struck down.

The response, a copy of which is available with Dawn.com, said: “In the alternative, declare Sections 2, 3, 4, 5, 7 and 8 (of the act) to be ultra vires the Constitution and strike down the same.”

In its grounds, the PTI argued that the law was “beyond parliament’s legislative competence” and “is unlawful as it impinges on the independence of the judiciary”.

It further stated that the legislation was also unlawful because it “goes against settled interpretations of various constitutional provisions by this Honourable Court”, adding that the interpretations “form a part of the provisions of the Constitution themselves and can thus only be modified by means of constitutional amendments”.

Explaining its grounds for the parliament’s lack of legislative competence, the response cited Article 175(2) under which the law has been passed. It says: “Article 175(2) states that ‘No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law’.”

It went on to cite Article 191, which states that “Subject to the Constitution and law, the Supreme Court may make rules regarding the practice and procedure of the Court.”

The response also said, “Neither of these provisions by itself acts as a source of legislative power, with the term ‘law’ used therein referring only to laws enacted by Parliament in the exercise of legislative power granted by other provisions of the Constitution.”

Asserting that Articles 175(2) and 191 “do not specify the ‘appropriate legislature’ which can pass ‘law’ thereunder”, the PTI argued that the use of the term “law” in those articles does not provide legislative competence to the parliament.

Detailing its grounds for how the law impinges on the judiciary’s independence, the PTI cited the apex court’s April 13 verdict wherein it observed, “The very existence of any such power of Parliament to interfere with the independence of the judiciary is what ‘needs to be determined, and not simply its application to this or that situation’.”

The response noted that if today, the power of Parliament to direct the Supreme Court on who is to constitute benches and hear matters was upheld, an attempt tomorrow by the Parliament to itself constitute benches and assign cases would also have to be upheld. “This is a proposition which simply cannot be sustained,” it asserts.

The PTI also argued that interpretations of the Constitution by the Supreme Court cannot be done away with through “ordinary legislation” and cites two previous cases to support it.

The response further stated: “Any attempts by the Parliament, such as through Section 2 of the Impugned Act, to take away or interfere with the ‘exclusive’ prerogative of the Chief Justice to form benches and assign cases thereto is unconstitutional.”

It also asserted that the office of the CJP, “being an institution in itself, is one against which there cannot be a presumption of mistrust, with the authority vested therein being necessary for the proper functioning of the Court”.

It is worth mentioning here that the bill, aimed at regulating the powers of the CJP, was approved by the Parliament during a joint sitting on April 10.

The National Assembly, on April 21, notified the Supreme Court (Practice and Procedure) Bill 2023 as an act.

However, even before it became an Act, the bill was challenged in the Supreme Court, and, on April 13, the same bench hearing the case today halted its implementation, observing that the bill would not be acted upon in any manner till further order.

“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,” read the nine-page interim order issued on April 13.

In its order, the bench stated that the facts and circumstances presented here are extraordinary both in import and effect.