The Supreme Court has agreed to review a bill that would restrict the authority of the CJP.
The petitioner contends that the measure should be declared “unconstitutional” since the Supreme Court is the only body that possesses the right to create its own rules.
ISLAMABAD: On Tuesday, the Supreme Court (Practice and Procedure) Bill, 2023, was contested in front of the high court.
The bill’s opponent, attorney Muhammad Shafay Munir, said that it should be deemed illegal and unconstitutional because only the highest court has the power to enact its own regulations. Among others, the petition named the Secretary of the Federation of Pakistan and the Minister of Law and Justice as respondents.
The Supreme Court (Practice and Procedure) Bill, 2023, was passed by the joint session of parliament with amendments days after President Dr. Arif Alvi vetoed a bill that sought to limit the chief justice of Pakistan’s (CJP) ability to convene suo motu and form benches in the face of opposition from senators from the Pakistan Tehreek-e-Insaf party.
To “safeguard the Constitution and independence of [the] judiciary as preserved and completely secured in the preamble of the Constitution,” Munir filed a constitutional petition pursuant to Article 184(3).
According to the petition, “the federal government along with [the] PDM (Pakistan Democratic Movement) started a vicious campaign in [the] general public and media to undermine the reputation and credibility of [the] honourable judges” of the SC, “especially” the CJP,” during the proceedings of the Supreme Court’s suo motu hearing regarding the delay in the Punjab elections.
It went on to say that the current administration’s “agenda” included the Ministry of Law’s proposal of a measure to limit the CJP’s authority in a “hurry without adopting the due course of law and in contravention of Article 70 (1 and 4) of the Constitution.”
The law was referred for review by Alvi because it “was against the above-mentioned Constitutional requirements,” according to the statement that said it was forwarded to the president for his assent.
“Again, in a rush and without following the due course of law, beyond [the] powers of the Parliament, the Parliament passed the measure on April 10 in a joint session without taking into account and discussions on the objections by the president on [the] bill in issue.”
According to the petition, the Constitution explicitly stated that the “independence of the judiciary” should be fully protected and that “the Parliament has no authority to approve such an act to reduce the powers of [the] Supreme Court, the chief justice, or the judges.”
It claimed that although the president had “highlighted the areas” that needed to be reconsidered, the Parliament did not do so and instead enacted the law beyond its authority.
The petition said that Article 191 of the Constitution allowed the Supreme Court to “establish rules regulating the practise and procedure of the court, subject to the Constitution and law,” as part of its justification.
It went on to say that the court itself, not the House, had been “expressly entrusted” with the authority to create SC norms.
This meant that the Parliament lacked the authority to “enact any kind of law in regard to the powers and procedures of the Supreme Court,” according to the ruling.
In support of its claim, the petition cited the Fourth Schedule provided under Article 70(4) of item No. 55 of the Federal Legislative List, which stated that the Parliament only had authority over expanding the SC’s jurisdiction—not over reducing it.
According to the petition, the SC has already established rules governing its procedure and practise, and “Order X1 of Supreme Court Rules 1980 provides Constitution of Benches, and this power lies with the” CJP. These powers could not be restricted by a law passed by the Parliament because they fall outside of its purview and scope of enactment, the petition claims.
“The Supreme Court is established, empowered, and regulated by the Constitutional Provisions given in articles 176 to 191, but not by any other law made by the Parliament, and it is fully secured in the preamble. Therefore, if any curtailment of powers of the Supreme Court or its Chief Justice is required to be made, it could only be made through the Constitutional Amendments with two thirds of the votes, but not by one vote by way of passing [the] bill in an ordinary manner.”
The top court was urged to approve the petition and rule that the “impugned” law was “ultra vires, unconstitutional, and without legal force.”