Legal eagles term top court’s ruling “premature” and a “disappointing exercise of judicial power”.
In a pre-emptive move, the Supreme Court (SC) on Thursday barred the government from implementing a bill seeking to curtail the chief justice of Pakistan’s (CJP) powers once it becomes a law.
The bill, titled Supreme Court (Practice and Procedure) Bill 2023, is aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity and has now taken the centre stage in a weeks-long conflict between the judiciary and the incumbent federal government.
The detailed order, issued by an eight-member SC bench including sitting CJP Umar Ata Bandial, said that contentions raised disclosed that there was a “substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision”.
“Such intermeddling in the functioning of the court, even on the most tentative assessment, will commence as soon as the bill becomes the act. Accordingly, in our view an interim measure ought to be put in place, in the nature of an anticipatory injunction.
“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,” the court order said.
The ruling coalition has termed the bench’s ruling a “clear example of conflict of interest” and an “attack on the federation of Pakistan”.
But what do legal experts have to say about it?
Basil Nabi Malik
Lawyer Basil Nabi Malik termed the SC bench’s order a “disappointing exercise of judicial power”.
“The bench is seen as controversial, the maintainability of these petitions is arguable (which is the most charitable of views), and the interim order flies in the face of settled law,” he told Dawn.com.
Malik said that the SC order was “innovative” much like the “doctrine of necessity or the doctrine of revolutionary legality”.
“But as is apparent from how history views those doctrines, not all innovation is good,” he said.
“In a nutshell, the order holds, prima facie and inter alia, that the bill is close enough to an act to be challenged but not quite there to take effect. Coincidental, I suppose, and convenient for passing of an interim order to stop it from becoming effective.”
He further said that the bill “unsurprisingly” alluded to the independence of the judiciary being in danger.
“Who would have thought that structuring the CJP’s discretion, among other things, could be so potentially harmful for the judiciary that an anticipatory injunction was deemed necessary?” he remarked.
“In any case, one thing appears certain. The SC has made a categorical statement for all concerned. Now who it deems ‘concerned’ is another question altogether,” Malik said.
Mirza Moiz Baig
Lawyer Mirza Moiz Baig, meanwhile, said that the power of judicial review allowed the courts to strike down any law that was inconsistent with the Constitution.
However, in this case, the assumption of judicial power “appears to be premature given that the bill is yet to take effect”.
“Furthermore, the SC and high courts throughout the country have consistently held that a provision of law cannot be suspended by way of interlocutory relief in a case where the vires of a law have been challenged.
“In holding that the bill, once it receives the president’s assent or is deemed to have been assented by the president, would continue to have no effect, not only departs from 70 years of jurisprudence but is also tantamount to deciding the entire petition through an interlocutory application,” Baig said.
Further, in holding that the bill intruded on the judiciary’s independence “in the guise of regulating the practice and procedure of the court”, the court has shown its mind, thus, prejudicing the federation’s claim and eroding all semblance of fair trial, he said.
“This may also be the first time that the court has effectively granted an injunction against the legislature’s ability to, well, legislate! While the court may have repelled what it perceived to be an attack on its independence, it may have, once again, missed the forest for the trees,” he said.
Rida Hussain
Lawyer Rida Hussain recalled that in Federation of Pakistan vs Aitzaz Ahsan, the Supreme Court had held that “until a law is finally held to be ultra vires for any reason, it should have its normal operation” .
“This was a leave granting order,” she said, adding that keeping this in view the precedential value of today’s order was questionable.
“Eight judges have now held that they can stay the enforcement of a law before it even becomes law. There are many parts of the bill that are on the face of it unconstitutional and rightfully subject to challenge. But often, even the right decision in the wrong way comes with its own set of problems,” she said.
Abdul Moiz Jaferii
Lawyer Abdul Moiz Jaferii said that the SC had “stitched” together a bench that was more notable for the judges it excluded rather than those it included.
“It has then gone on to conduct absolute judicial overreach into the jurisdiction of the legislature and to stop the heart of a law before it began to beat,” he told Dawn.com.
Jaferii said that the top court had acted in this manner on the premise that any attempt to legislate procedure for the SC was a threat to its independence, not for what is being done today but for what could be done tomorrow if it was allowed to pass.
“This is despite the power to make laws for such procedure being clearly enshrined in the Constitution. Because as the SC quotes, ‘the power to regulate involves the power to destroy’. Leading from this quote, the SC has attempted to destroy what it cannot properly yet regulate,” Jaferii said.
He said that the SC had issued a judgement on a situation in the present based on what could happen in the future and had “called judgment upon what may have shown itself to be good on the premise that it’s progeny could be evil”.
Salaar Khan
Meanwhile, lawyer Salaar Khan interpreted the judgement as the SC basically holding that “a bill that is not even an act yet shall be still-born”.
Commenting on the ruling in a series of tweets, the lawyer noted that “even as it creates such bold precedent, not one judge out of eight expressed a different view”.
He further said: “We demand elections so that the people are represented in the legislature. That legislature passes laws. If some leave, others still have that right.
“Celebrating pre-emptive intervention in that right by unelected judges is short-sighted and inconsistent.”
The lawyer said there were parts of the bill that could be reasonably challenged in court, but only after it becomes law.
“Elections must still happen. But the process matters. When we allow the ends to justify the means, we condone the same necessity that this court once birthed,” he concluded.
