SC (Practice and Procedure) Act, 2023: SCBA files written reply to voice its opposition

ISLAMABAD: The Supreme Court Bar Association (SCBA) president stated that the Supreme Court (Practice and Procedure) Act, 2023, stands in violation of Article 191 of the Constitution as it attempts to intrude on the exclusive powers granted to the apex court.

SCBA President Abid Zuberi, on Tuesday, filed a written reply before the Supreme Court against the Act 2023.

Zuberi specified that Article 191 confers the apex court with exclusive power to make rules regulating its practice and procedure. “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court,” reads Article 191.

Zuberi pointed out that Sections 2, 4 and 6, of the Act assented into law by President Arif Alvi on May 26, 2023, after being passed by the parliament and the Senate, “deals with the constitution of benches and therefore falls within the purview of practice and procedure”.

According to the SCBA, while Article 191 is subject to the Constitution, there is no conflicting provision in the Constitution against the powers granted under this, therefore it is not “subject to or subservient to any (other) provision”.

“The Supreme Court has already enacted rules in relation to its practice and procedure, given that the said field is already occupied, Parliament cannot now enact a conflicting piece of legislation,” wrote the SCBA president.

He further specified that while the parliament can legislate on “enlargements of the jurisdiction of the Supreme Court and the conferring thereon of supplemental powers (as per the Constitution)” it can only do so through a Constitutional amendment. As it stands currently, the parliament cannot interfere in the jurisdiction of the top court, wrote Zuberi, referring to Articles 184 - 186 of the Constitution.

The Supreme Court (Practice and Procedure) Act 2023, Section 2 (constitution of benches) of the law states that “every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the committee comprising the chief justice of Pakistan and two senior-most judges, in order of seniority.” It adds that the “decisions of the committee shall be by majority.”

Section 3 of the proposed law proposes that any matter invoking the exercise of original jurisdiction under clause (3) of Article 184 (original jurisdiction by the Supreme Court) of the Constitution shall be first placed before the committee constituted under section 2 for examination.

It adds that if the committee is of the view that a question of public importance with reference to the 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 which may also include the members of the committee, for adjudication of the matter.

Copyright Business Recorder, 2023