Court has much respect for Parliament: CJP Umar Ata Bandial

ISLAMABAD,  April 13 (SABAH): Chief Justice of Pakistan Justice Umar Ata Bandial on Thursday remarked that the court has much respect for the Parliament and issued notices to President Dr. Arif Alvi, Prime Minister Mian Muhammad Shehbaz Sharif and others during the hearing of petitions challenging a bill clipping the powers of the chief justice.

An eight-member bench of the Supreme Court heard the petitions challenging the Supreme Court (Practice and Procedure) Bill 2023 amidst a boycott of court proceedings by the country’s top lawyers body and criticism of the coalition parties.

The bench is headed by CJP Bandial and comprises Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

Petitions have been filed by Raja Amer Khan, Chaudhry Ghulam Hussain and Muhammad Shafay Munir through Khawaja Tariq A. Rahim, Imtiaz Rashid Siddiqui, Muhammad Azhar Siddique and Muhammad Hussain Choutya. Tariq Aziz and Chaudhry Akhtar Ali appeared in the court as Advocates on Record. The petitioners have made the Federation of Pakistan through the Secretary Law and

Justice Division, Ministry of Law and Justice Islamabad and others in the petitions.

At the outset of the hearing, the petitioner’s lawyer Imtiaz Siddiqui started his arguments by saying that this case is very important in the prevailing situation.

The counsel said that differences widened between the parties in the wake of the Qasim Suri case and the political crisis increased after the National Assembly was restored.

“The federal government and the Election Commission of Pakistan (ECP) are not willing to hold elections which is why the court had to take suo motu notice,” said Siddiqui, while highlighting the circumstances in which the apex court intervened in the matter.

The lawyer said that the problems created following the court’s directives to implement the Constitution after which the judges and judiciary were criticised.

“The government’s ministers and members of parliament are responsible for this,” said the lawyer, adding that the proposed legislation interfered with the independence of the judiciary.

He said that the president’s objections to the bill were not examined. Siddiqui said that the bill will become law after the approval of a joint session of the parliament in 10 days. He said that the Supreme Court makes its own rules under Article 191.

A three-member committee will decide on the formation of benches and taking up suo motu notice under the bill, the lawyer said, while explaining the important points of the bill.

“It is illegal for the cabinet to endorse a bill. Presenting and approving a bill in the cabinet are administrative matters,” he noted. He further said that the bill is not pending but is a proposed act, adding that it would become law in 10 days whether or not the president approves it.

Lawyer Siddiqui said that the Supreme Court can nullify the bill passed by the parliament. “The Supreme Court does not exist without the chief justice and by limiting his powers, the judiciary’s independence and other judges will be affected,” remarked the lawyer.

He further said that the CJP and the judges’ powers cannot be curtailed. Siddiqui added that the apex court can review the steps taken by the state’s institutions.

“The court can review the bill once it is passed and even before it is approved by the president,” he insisted.

Siddiqui observed that the parliament is bound to obey the orders given by the Supreme Court.

“The Supreme Court’s rules under Article 191 cannot be amended by the parliament,” he said.

In his response to the lawyer, CJP Bandial said: “According to you, the freedom of judiciary is a basic right which enjoys complete security by the Constitution.”

He added that similarly, “you [Siddiqui] think that the judiciary also has constitutional security just like the parliament and executive.” Siddiqui replied that the president is a symbol of unity of the state of Pakistan and his position as the head of state is not just ceremonial.

“The president directed to review the bill once again, however, the bill cannot be amended after the approval of the assembly,” he said, adding that the process of legislation is considered done once it is passed.

Advocate Siddiqui requested the court to stop the bill from becoming law and the Ministry of Law should be restrained from notifying the proposed act as a law until the verdict is announced. Siddiqui said that there is a right to appeal under the proposed bill.

“How can an appeal be filed if a 10-member bench hears a case? Can junior judges hear the appeal against the verdict announced by senior judges?” he questioned. At this, CJP Bandial replied that all the judges in the court are equal.

Advocate Siddiqui said that the stages before the approval of the bill should also be taken into consideration in this case.

“What do you want from the court regarding this current case?” questioned Justice Akhtar. To this, the lawyer said that the Supreme Court (Practice and Procedure) Bill, 2023 should be declared unconstitutional.

CJP Bandial remarked that this is an important case as the matter regarding the judiciary’s independence was raised. “We have the utmost respect for the parliament, however, the court wants to examine the legislation,” he stated.

The chief justice said that the court will try to schedule the next hearing as soon as possible when fellow judges are available.

Later, the Supreme Court issued notices to the parties in the petitions filed against the bill clipping CJP’s powers including Pakistan Bar Council and Supreme Court Bar Association. The apex court also issued notice to the attorney general for legal assistance, adjourning the hearing till next week.

It is worth mentioning here that amid strong protest from the Pakistan Tehreek-e-Insaf (PTI), the federal government on Monday got the Supreme Court (Practice and Procedure) Bill, 2023, passed in the joint session of parliament after President Dr. Arif Alvi returned the bill seeking to curtail the chief justice’s suo motu powers last week.

Minister for Law and Justice Senator Chaudhry Azam Nazeer Tarar Advocate presented the SC bill in the joint sitting of the house held with National Assembly Speaker Raja Pervaiz Ashraf in the chair.

The president had returned the bill for reconsideration to parliament as per the provisions of the Article 75 of the Constitution, stating that the bill prima-facie travels beyond the competence of parliament and can be assailed as colourable legislation. The bill was aimed at curtailing the powers of the chief justice of Pakistan (CJP) — including the suo motu and the formation of benches.

During the much-anticipated sitting, the house approved an amendment to the SC bill, under which the judges committee meeting will be convened to devise rules and regulations regarding the suo motu matter. The amendment was proposed by PML-N lawmaker Shaza Fatima Khawaja.

The Bill proposes that every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by a Committee comprising the Chief Justice of Pakistan and two senior most judges in order of seniority. It further states any matter invoking exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be first placed before the committee for examination and if the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights is involved then it shall constitute a bench comprising not less than three judges of the apex court , which may also include the members of the committee for adjudication of the matter.

The Bill recommends that an appeal shall lie within 30 days from the final order of a bench of the Supreme Court, who exercised jurisdiction to the larger bench of the apex court and such appeal shall for hearing be fixed within a period not exceeding fourteen days. Furthermore, it grants a party the right to appoint counsel of its choice for filing a review application. An application pleading urgency or seeking interim relief filed in a cause, appeal or matter shall be fixed for hearing within 14 days from the date of its filing.

As per the amendment, the chief justice of Pakistan or any other member of the committee can call the meeting until the rules and regulations are finalised.

Now the bill will be presented before the president once again for his assent. If the head of the state does not give his approval within 10 days, it would be deemed to have been given.

Addressing the joint session, the law minister said that voices against the chief justice’s suo motu powers were arising from within the top court.

It is pertinent to mention here that two judges of the apex court on March 27 raised questions over the powers of the CJP, saying the SC “cannot be dependent on the solitary decision of one man, the Chief Justice”.

In a 27-page detailed note for the apex court’s March 1 verdict in Punjab and Khyber Pakhtunkhwa suo motu, Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail pointed out that it is important “to revisit the power of ‘one-man show’ enjoyed by the office of the Chief Justice of Pakistan [Umar Ata Bandial]”.

In his 25 page-long note, Justice Athar Minallah said, “The process of constitution of benches and allocation of cases must be transparent, fair and impartial.”

The law minister read out the message of the president who returned the bill for reconsideration. He said that bill was discussed in detail in the National Assembly and it was also approved by the Senate.

The minister responded to the objections of the bill and said the “President used inappropriate words while returning this bill and used a biased approach”. He said that Dr Alvi should think “as the President rather than a political worker”.

The federal minister said it was the demand of the bar associations and councils to introduce the bill and they had supported the bill. This bill, he said, was an old demand of the bar council which said that the indiscriminate use of 184(3) should be stopped.

The passed bill – the Supreme Court (Practice and Procedure) Bill, 2023 – aims at giving the power of taking suo motu notice to a three-member committee comprising senior judges including Chief Justice. It also aims to have transparent proceedings in the apex court and includes the right to appeal.

Regarding the constitution of benches, the bill states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges. It added that the decisions of the committee would be taken by a majority.

Regarding exercising the apex court’s original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the committee.

The bill says that if the committee is of the view that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the SC of Pakistan which may also include the members of the committee, for adjudication of the matter.

On matters where the interpretation of the Constitution is required, the bill said the committee would compose a bench comprising no less than five apex court judges for the task.

About appeals for any verdict by an apex court bench that exercised Article 184(3)‘s jurisdiction, the bill said that the appeal will lie within 30 days of the bench’s order to a larger SC bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

It added that this right of appeal would also extend retrospectively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the SC (Practice and Procedure), Bill 2023, on the condition that the appeal was filed within 30 days of the act’s commencement.

The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, it states that an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing.

The bill said that its provisions would have effect notwithstanding anything contained in any other law, rules, or regulations for the time being in force or judgment of any court, including the Supreme Court and high courts.