An eight-member larger bench of the Supreme Court took up four petitions challenging a bill seeking to curtail the powers of the chief justice of Pakistan (CJP) amid strong criticism from the ruling alliance — that has rejected the "controversial bench" hearing the pleas.
The CJP noted that independence of the judiciary was an important matter but at the same time said that he had a lot of respect for the parliament.
The proposed law is aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity. It was initially passed by both houses of parliament and sent to the president for his assent. However, the president had sent it back, saying that the proposed law travelled “beyond the competence of parliament”.
On Monday, the bill was passed by a joint sitting of parliament with certain amendments, amid a noisy protest from PTI lawmakers.
In addition to CJP Umar Ata Bandial, the bench hearing the case comprises 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.
During the hearing today, the court issued notices to the political parties, the federal government, Attorney General for Pakistan (AGP) Mansoor Awan, Pakistan Bar Council (PBC), the Supreme Court Bar Association of Pakistan and other respondents in the case.
As the hearing commenced, the petitioners’ lawyers Advocate Azhar Siddique, Advocate Imtiaz Rashid Siddiqui and Attorney General for Pakistan (AGP) Mansoor Awan appeared in the court.
At the outset of the hearing, Advocate Imtiaz presented his arguments. He said that in the current scenario, the case held a lot of importance.
He stated that ever 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 lawyer recalled that the SC had to take a suo motu notice last month and had instructed the government to hold elections. “On April 4, the court once again passed the same orders,” he said but at the same time highlighted that a deeper crisis had emerged after the apex court’s orders.
“The court and judges were each personally criticised,” he pointed out, holding the government and members of the parliament responsible for it.
Talking about the bill in question, the lawyer contended that the proposed legislation was an attempt to interfere with the independence of the judiciary.
“After approval from both houses of the parliament, the bill was sent to the president but he returned it to the National Assembly with objections,” he recalled. “But on the basis of political differences the president’s objections were not reviewed.”
Advocate Imtiaz went on to say that the bill will automatically become a law within 10 days after approval from a joint session.
He argued that under Article 191 of the Constitution, the SC made its rules itself. Under the new law, decisions regarding suo motu cases and the formation of the benches would be taken by a three-member committee, Imtiaz continued.
“The basic question is whether this bill is worthy of becoming a law,” the lawyer asked, stating that it was illegal for the cabinet to ratify the bill. “Bill presentation and approval in the cabinet are both administrative matters.”
Presenting the bill in the assembly and getting approval is also unconstitutional, he further said and argued that whether the president gave his assent or not, the proposed act would eventually become a part of the law.
“The Supreme Court can invalidate the bill passed by the Parliament,” Imtiaz said. “The apex court does not have an existence without the CJP. Only with the appointment of the CJP can the SC be complete.
“Without the CJP, even if other judges are present, the SC would be incomplete,” the lawyer insisted. “The powers of the CJP and other judges cannot be reduced.
“The office of the chief justice cannot be used by another judge. How can he share his office with two other senior judges?” he asked.
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.
Referring to the SC’s judgment in former NA deputy speaker Qasim Suri’s controversial ruling case, Imtiaz said that the apex court had declared during the hearings that actions of the parliament could also be reviewed.
In the past, the court has declared that a bill cannot be stopped from passing but once it was passed the court could review it. “Hence, as per the court decision, the proposed act can be reviewed even before the assent of the president.”
Continuing his arguments, the lawyer said that the court was the guardian of the Constitution and was empowered to ensure that justice prevailed. All the institutions were bound to adhere to the SC’s orders, but the Supreme Court rules cannot be amended by the parliament, he contended.
Imtiaz also said that the president was the symbol of the unity of the state and that his role was not just ceremonial. He recalled that the president had clearly called for reviewing the SC (Practice and Procedure) Bill 2023. “But after approval from the National Assembly, the bill could not be amended.”
He further argued that the legislative process was considered to be complete once a bill was approved by the parliament. “The order of the court in the present case will not interfere with the pending legislation.
“The parliament has completed its work, so this [case] cannot be considered an interference,” Imtiaz added.
Here, the CJP remarked: “According to you, the independence of the judiciary is a fundamental right which is fully protected by the Constitution.
“According to you, just like the parliament and the executive, the judiciary also enjoys constitutional protection,” he said.
Earlier today, the federal coalition issued a joint statement rejecting the eight-member bench, saying that the apex court’s move to form a “controversial bench” even before the completion of the legislative process was “unprecedented” and “unacceptable”.
The bill was approved by the federal cabinet on March 28 and the National Assembly passed it a day later after a few amendments suggested by the Standing Committee on Law and Justice.
On March 30, it was passed by the Senate and then referred to the president for his approval.
The president, however, returned it, with the objection that it was a “colourable legislation”. In his detailed reply, which he also posted on Twitter, the president said that he thought it fit and proper to return the bill, in accordance with the Constitution, with “the request for reconsideration in order to meet the scrutiny about its validity (if assailed in the court of law)”.
He underlined that Article 191 of the Constitution empowered the SC “to make rules regulating the practice and procedure of the Court”.
Prime Minister Shehbaz Sharif, however, had termed the president’s move to be “most unfortunate”. “Through his conduct, he has belittled the august office by acting as a worker of the PTI, one who is beholden to Imran Niazi more than the Constitution and demands of his office,” he said.
On Monday, the bill was passed by the parliament’s joint session with a few amendments. As per the Constitution, the bill will be sent to the president once again for his assent, and if he does not sign it within ten days, assent will be deemed to have been granted.
According to the fresh legislation, a three-member bench consisting of the CJP and the two senior-most judges of the apex court will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP.