ISLAMABAD: Chief Justice Umar Ata Bandial on Wednesday constituted an eight-member bench for hearing various petitions against the Supreme Court (Practice and Procedure) Bill, 2023.
The bench is headed by chief justice and comprises Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi, and Justice Shahid Waheed.
Senior journalists, Chaudhry Ghulam Hussain and Sami Ullah Abraham, and the advocates, Raja Amer Khan, Malik Amir Abdullah and Muhammad Shafay Munir have filed petitions before the Supreme Court under Article 184(3) of the Constitution to set aside the Bill 2023 and cited Federation through Secretary Law and Justice, Minister of Law, principal secretaries to the prime minister and the president as respondents.
The petitioners have prayed to the apex court to declare the “impugned” bill as ultra vires and unconstitutional and of no legal effect.
The joint sitting of Parliament on April 10 passed the Supreme Court (Practice and Procedure) Bill, 2023, with amendments days after President Dr Arif Alvi returned the bill seeking to curtail the chief justice of Pakistan (CJP)’s powers to initiate suo motu and constitute benches amid protest by the Pakistan Tehreek-e-Insaf (PTI) senators.
The petitioners contended the bill seeks to interfere in and then regulate the discharge of constitutional functions by the office of the CJP in exercise of assumption of jurisdiction and then judicial power of suo moto.
A process of appeal has been provided, to slowdown, frustrate and delay the holding of the provincial general elections. The entire objective thereof is to regulate suo moto proceedings and its orders.
They said it is now settled law that suo moto jurisdiction, the assumption and exercise of judicial power by the apex court, is to be invoked and set in motion only by the chief justice. This issue stands decided in an elaborate judgement reported as PLD 2022 SC 306. The very initiation of the impugned action, endorsement by the cabinet, placement of thereof and approval by the Parliament is a pure and simple malafide action. It is a fraud on the Constitution.
They said the impugned amendments were made in order to achieve the Government’s target which was to provide undue advantages to Nawaz Sharif, as well as, to sabotage and derail the fully announced and scheduled election process in two provinces of the country.
The petitioners said that the respondents have not acted fairly, reasonably or justly, hence, the matter at hand is subject to intervention by this Court whilst exercising its jurisdiction as the respondents are primarily responsible for ensuring the complete compliance of provisions of the constitution.
The office of the respondents, whilst acting in the garb of administrative and policy matter immunity, is required to act faithfully in the best interest of the public and exchequer, they added.
They submitted that the Constitution had made it clear that the “independence of the judiciary” should be fully secured and the “Parliament has no powers to pass such an act to curtail the powers of (the) Supreme Court or its chief justice or the judges”.
It maintained that the president had “highlighted the aspects” that required reconsideration, but the Parliament failed to reconsider the same and passed the bill beyond its powers.
The petitions said that Article 191 of the Constitution stated that “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court”. The powers to make SC rules were “expressly entrusted” to the court itself and not to the Parliament, it added.
They noted that according to the Fourth Schedule given under Article 70(4) of the Federal Legislative List’s item No55, the petition maintained that the Parliament only possessed powers in relation to the enlargement of the jurisdiction of the apex court, but not to curtail its powers.
According to the petitions, the SC while exercising powers under Article 191 of the Constitution, has already framed rules regulating its procedure and practice, and Order XI of Supreme Court Rules 1980 provides Constitution of Benches, and this power lies with the CJP and these powers could not be curtailed through an act of the Parliament being beyond its jurisdiction and areas of enactment.
Copyright Business Recorder, 2023
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