Bill clipping CJP’s powers challenged in SC, IHC

ISLAMABAD, APR 11: The Supreme Court (Practice and Procedure) bill 2023 has been challenged in the Supreme Court and the Islamabad High Court (IHC).

The bill is aimed at curtailing the powers of the chief justice — including the suo motu and the formation of benches. The PTI has strongly condemned the move to pass the legislation and said it is an “attack on the judiciary”.

Advocate Mohammad Shafay Munir filed a petition in the top court and made the federal government a party in the plea. The petition stated that the bill should be declared unconstitutional and illegal.

As per the petition, the Supreme Court has the authority to make rules of the apex court. “The changes made by the parliament in the Supreme Court’s Rules are illegal,” it added. 

The plea also said that legislation related to court is “malicious”, adding that the powers of the Supreme Court cannot be limited through an Act of Parliament under Article 70. 

The petition has been filed in the apex court under Article 184(3). 

Meanwhile, the amendments made in the bill have also been challenged in the high court by lawyer Saeed Aftab in a separate plea, who requested the court to nullify the proposed bill. 

According to the petition, the basic demand was the right to appeal against the verdicts under Article 184. “The right to appeal could be granted without curtailing the powers of the chief justice of Pakistan,” read the petition. 

The petition stated that the right to file an intra-court appeal, like in the high courts, could have been given.

A day earlier, the federal government got the Supreme Court (Practice and Procedure) Bill, 2023, passed in the joint session of parliament after President Arif Alvi returned the bill last week.

The president had returned the bill for reconsideration to parliament as per the provisions of the Article 75 of the Constitution, stating that the bill prima-facie travels beyond the competence of parliament and can be assailed as colourable legislation. The bill was aimed at curtailing the powers of the chief justice of Pakistan (CJP) — including the suo motu and the formation of benches.

During the much-anticipated sitting, the House approved an amendment to the SC bill, under which the judges’ committee meeting will be convened to devise rules and regulations regarding the suo motu matter. The amendment was proposed by PML-N lawmaker Shaza Fatima Khawaja.

As per the amendment, the chief justice of Pakistan or any other member of the committee can call the meeting until the rules and regulations are finalised.

Now the bill will be presented before the president once again for his assent. If the head of the state does not give his approval within 10 days, it would be deemed to have been given.

The bill

The passed bill – the Supreme Court (Practice and Procedure) Bill, 2023 – aims at giving the power of taking suo motu notice to a three-member committee comprising senior judges including the chief justice. It also aims to have transparent proceedings in the apex court and includes the right to appeal.

Regarding the constitution of benches, the bill 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 committee.

The bill says 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 SC of Pakistan which may also include the members of the committee, for adjudication of the matter.

On matters where the interpretation of the Constitution is required, the bill said the committee would compose a bench comprising no less than five apex court judges for the task.

About appeals for any verdict by an apex court bench that 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 SC 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 retrospectively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the SC (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, it states that 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.