Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday formed an eight-judge bench—led by him—to take up three petitions “setting aside the Supreme Court (Practice and Procedure) Bill, 2023 aimed at curtailing his unfettered powers of suo motu.
Apart from the CJP, the bench comprises Justices Ijazul Ahsan, Munib Akhtar, Sayyed Mazahar Ali Akbar Naqvi, Mohammad Ali Mazhar, Ayesha Malik, Syed Hasan Azhar Rizvi and Shahid Waheed. The bench has become controversial before a single hearing, as it includes three judges that the government has already accused of bias. Legal experts have also questioned the deviation from standard practice of forming odd-numbered benches to avoid the possibility of a deadlock, with social media rife with speculation that the verdict has already been decided and the proceedings are a mere formality.
Additionally, questions have been raised over the Supreme Court taking up a bill that has yet to become law. President Arif Alvi last week returned the bill to Parliament for “reconsideration,” following which a joint session of Parliament passed it anew. Under law, the president has 10 days after the passage of the bill to grant his assent for making it law, with it becoming de facto law if he does not give any response. The joint session passed the bill on Monday, meaning it will not become law before April 20.
The petitions placed before the Supreme Court argue that the concept, preparation, endorsement and passing of the Supreme Court (Practice and Procedure) Bill, 2023 is tainted with mala fide intentions and it should be struck down after being declared to have no lawful authority or legal effect. They have named the federal government, law secretary as well as principal secretaries to the prime minister and president as respondents in the case.
The petitioners have requested the apex court to suspend the bill while the petition is pending, adding that the federal government cannot frame any law that seeks to interfere or regulate the functioning of the Supreme Court or the powers exercised by it or its judges, including the CJP, under the Constitution. The petition further argues that the federal government has committed a blatant violation of the Constitution in framing the bill.
Referring to Article 176 of the Constitution, the petitions argued that independence of the Supreme Court and the CJP must be ensured and any interference from all executive or legislative transgress prevented. Similarly, the petitions argue that the office of CJP with respect to constitutional powers, i.e. suo motu, cannot be regulated by Parliament. The petitions also maintain that a clause allowing for appeals to suo motu verdicts require a constitutional amendment and cannot be achieved through a simple law.
Bar Council condemns
In a statement issued on Wednesday night, the Pakistan Bar Council (PBC)—the highest elected body of lawyers across the country—opposed the Supreme Court’s bid to take up the petitions, describing it as “premature.” It also called on lawyers nationwide to boycott courts on Thursday (today) to protest the formation of a “one-sided and controversial bench.”
Stressing that the challenges to the Supreme Court (Practice and Procedure) Bill, 2023 were taken up in haste, the PBC termed it an attempt to divide the apex court, adding that no law enacted by Parliament had ever been prevented from being implemented in Pakistan’s history. The PBC also stressed that the legislation in question was in line with the demands of bar councils and associations across the country, and any attempts to prevent its passage would be opposed.
The statement concluded by saying that the PBC’s representatives from across the country would meet on April 17 (Monday) for further deliberations on the issue.