The Senate on Thursday passed the Supreme Court (Practice and Procedure) Bill 2023, which aims to deprive the office of the chief justice of Pakistan (CJP) of powers to take suo motu notice in an individual capacity.
The bill had been approved by the federal cabinet on March 28 and a day ago, the National Assembly passed it as well after a few amendments suggested by the Standing Committee on Law and Justice hours earlier.
The amendments proposed in the Supreme Court’s rules have sparked a fresh debate in legal and political circles and it is expected that the bill may be struck down by the apex court.
As the bill was moved by Federal Law Minister Azam Nazir Tarar in the Senate today, strong opposition from the PTI members was seen as they raised banners reading “attack on judiciary unacceptable”.
After the bill was passed, the session was adjourned till 10:30am on Friday (tomorrow). Later in the day, Senate Chairman Sadiq Sanjrani sent the bill to President Arif Alvi for his assent.
Procedurally, after bills are passed by the joint sitting of the National Assembly and the Senate, they are presented to the president for his assent. If the president does not give his approval within 10 days, it will be deemed to have been given.
Meanwhile, Prime Minister Shehbaz Sharif has said that the passage of the Supreme Court (Practice & Procedure) Bill 2023, will institutionally strengthen the apex court.
“It will help make the process of bench formation and exercise of Article 184 (3) transparent and inclusive, thus serving the cause of justice,” he tweeted.
SC became dependent on one individual: Tarar
Moving the bill in the Senate today, Tarar said, “As time passes, to run institutions, you have to go through various periods [and] face various conducts.
“Law never stands still. You have to keep a margin for changes in the law so that the law can function according to the needs of the people in the present age,” he added.
The law minister said, “A new trend was seen in the Supreme Court in the past two decades — instead of running the court through collective thinking, the court became dependent on an individual.”
Tarar argued it was the opinion of various stakeholders in the country — including “bar councils, bar associations, parliament, civil society, business sector and government officials” — that an order of “trichotomy of power” has been devised in the Constitution.
According to it, “legislation is the work of the appointed, judicial matters will be overseen by the adjudicator — the judiciary — and the administrative machinery to run the country will be subordinate to the Executive”, he added.
Bashing the excessive use of Article 184(3) of the Constitution, he said, “Executives were made to stand on the rostrum repeatedly. Such suo-motu notices were taken […] that matters of cleaning streets were also brought up.”
The minister lamented that the “state had incurred losses worth billions of dollars due to suo-motu notices”, mentioning that losses were faced in the Steel Mills matter and the Reko Diq agreement.
“The liver hospital also became victim to the chief justice [of Pakistan’s] personal ego,” he further said.
Tarar said voices had arisen from the various bar bodies and the Senate that the “jurisdiction of Article 106 of the Constitution be restructured at least” so that it would reflect “collective thinking”.
Defending the need for the bill, he said that there were demands in the recent Senate sessions as well to do legislation to “solve the issue”. He also highlighted that two amendments had been suggested on Wednesday by the standing committee.
Detailing the salient features of the bill, the law minister said that there had now arisen an opinion from within the Supreme Court that the power to constitute benches should not lie under one person only.
“Only collective thinking takes institutions forward. If you want to strengthen institutions, then strengthen the system instead of the personalities so that the institution can deliver,” he asserted.
Tarar further said the bill would solve the issues of deciding when a certain case has to be fixed for hearing and whether it is of public importance or not.
Recalling that there had been demands for a full court bench when “highly important national cases” were fixed for hearing by a three or five-member bench, he highlighted the last full court meeting was in 2019 — what he termed “in-auspiciousness of luck”.
Moreover, the law minister asserted the bill would curb the “injustices” done in cases by giving the respondents the right to appeal the verdict.
He said conflicts between two parties were brought to public importance: “You saw [orders] in Karachi that demolish this tower but in Islamabad, you saw [orders] that these two towers are extremely valuable and are not to be demolished. This should not be the standard for justice.”
On the amendment to give the right to appoint counsel of choice, he argued upon reading Articles 4 (right of individuals to be dealt with in accordance with law, etc), 10A (right to fair trial), and 25 (equality of citizens) of the Constitution, it is clear that it is a constitutional right to have a lawyer of one’s choice.
JI senator calls on parliament to “not bulldoze rules”
Meanwhile, Jamaat-i-Islami (JI) Senator Mushtaq Ahmad expressed his reservations about the said bill.
Speaking in the Senate today, Ahmad said, “This house does not make legislations for the poor. Legislation is enacted in this house for political purposes and to benefit the elite.”
He said he had reservations about the timing of the bill and how it was being passed in a haste.
Calling for the parliament to not “bulldoze the rules”, Ahmad said the bill was “only for the benefit of certain individuals” and should be debated upon.
The JI senator further said, “It is being said that the judiciary is interfering in the jurisdiction of the parliament; this is half true.
“Is only the judiciary interfering with the authority of the parliament? Is the establishment not interfering?” he rhetorically asked.
Ahmad raised the question if the National Assembly could pass such a resolution regarding the establishment as it did on the judiciary.
Clauses of the bill
Regarding the constitution of benches, the bill moved in the Senate today 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 abovementioned committee.
“If the committee is of the view that a question of public importance with reference to 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 Supreme Court of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.
On matters where the interpretation of the Constitution is required, the bill said the abovementioned committee would compose a bench comprising no less than five apex court judges for the task.
Regarding appeals for any verdict by an apex court bench which 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 Supreme Court 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 retroactively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Supreme Court (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, “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 judgement of any court, including the Supreme Court and high courts.
