Supreme Court (Practice and Procedure), Bill 2023,

[ghazi52]

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Supreme Court (Practice and Procedure), Bill 2023,

CJP does not have powers to form special benches​

Haseeb Bhatti
March 29, 2023

Justice Qazi Faez Isa and Justice Aminuddin Khan, in a detailed order of the Supreme Court on Wednesday, noted that the chief justice of Pakistan (CJP) does not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance — under Article 184(3) — should be postponed until they are legislated upon.

The two judges passed the order in a case pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that suggested an award of 20 additional marks to candidates for memorising the Holy Quran by heart to get MBBS or BDS degrees.

The case was heard by the aforesaid judges as well as Justice Shahid Waheed — who dissented from their verdict and will write his separate opinion.

The order, a copy of which is available with Dawn.com, first questioned why the special bench comprising judges from three different benches was formed to hear the case. “The question arises, why couldn’t an existing regular bench hear this case? The record does not disclose the reason for the constitution of this special bench, nor do we know,” the order reads.

“Neither the Constitution nor the rules grant to the chief justice (or the registrar) the power to make special benches, select judges who will be on these benches and decide the cases which they will hear.

“There is also no additional, incidental, ancillary or residual power with the chief justice which could be used to do this. Yet, unfortunately, this is being done and sometimes with grave consequences. Important aspects with which arose out of Article 184(3) of the Constitution were decided with significant consequences on the economy, politics and on other aspects of the lives of Pakistanis.”

At the order’s outset, the two judges said the Supreme Court Rules (1980) neither permit nor envisage special benches, adding that they did not know why a special bench was constituted for hearing their case and asked why a regular existing bench could not hear it.

Criticising special benches, the order said they provide detractors with the opportunity to claim the bench was “tailor-made to give a particular decision”.

“When benches are tailored and judges of a particular understanding or inclination are placed together to hear a particular case then doubts, suspicion and misgivings arise. A decision from an adjudicatory process which is perceived to be structured to obtain a particular decision invariably results in severe criticism.

“The matter assumes criticality when objections taken on the constitution of special benches and requests made for hearing by the full court are not attended to and no order disposing of such objections and requests is passed,” the order reads.

Postpones Article 184(3) cases​

Regarding Article 184-3 (matter of public importance) of the Constitution, the order highlighted that it had three categories of cases: a formal application filed for enforcement of fundamental rights, a suo motu notice taken by the apex court and cases of “immense constitutional importance and significance”.

The two judges said that Order 25 of the Supreme Court Rules (1980) only catered to the first category of cases with no procedure ascribed for the second and third categories.

“The situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution. The rules also do not provide how to attend to the following matters: how such cases be listed for hearing, how bench/benches to hear such cases be constituted and how judges hearing them are selected.”

The order said the apex court, comprising the CJP and other Supreme Court judges, was empowered to make rules on the above matters and the Constitution “does not grant to the chief justice unilateral and arbitrary power to decide the above matters”.

The two judges said the CJP “cannot substitute his personal wisdom with that of the Constitution” and collective determination by the CJP and other apex court judges cannot also be assumed by an individual.

“The interest of citizens therefore will be best served to postpone the hearing of this case and of all other cases under Article 184(3) of the Constitution till the matters noted herein above are first attended to by making requisite rules in terms of Article 191 of the Constitution.”

Pemra ban on judicial criticism​

The two judges also addressed the Pakistan Electronic Media Regulatory Authority’s (Pemra) prohibition on the broadcasting and rebroadcasting of content pertaining to the conduct of sitting high court and Supreme Court judges on electronic media, and criticised it.

The judges noted that the judiciary would be flawed if it was not “open to constructive criticism”, the people’s feedback could help to identify shortcomings and constructive criticism served the judiciary’s interest.

They termed the Pemra ban as a “gagging order” and said no reason was disclosed for its issuance. The order added that the “unsolicited media-gagging order brings the judiciary into disrespect and disrepute as citizens will assume that it has been issued on the direction of judges with a view to cover discrepancies, illegalities and/or blemishes.”

In a further damning indictment of the ban, the judges said: “Pemra’s complete prohibition to criticise judges offends the Constitution, law, morality and Islam.”

Growing debate over CJP’s powers​

The detailed verdict comes two days after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court had called for revisiting the power of the “one-man show” enjoyed by the chief justice, saying that the country’s top court could not “be dependent on the solitary decision of one man”.

The two had made the remarks in a detailed dissenting note — released on Monday hours after the apex court took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.

The two judges said the suo motu proceedings regarding the provincial elections stood dismissed by a majority of 4-3 and contended that the CJP did not have the power to restructure benches without the consent of the respective judges.

Prime Minister Shehbaz Sharif had hailed the dissenting note as a “ray of hope” during his National Assembly speech and called for relevant legislation in its wake.

Earlier today, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the CJP office of powers to take suo motu notice in an individual capacity.

Notably, the bill legislated regarding some of the issues raised by Justice Isa and Khan about Article 184(3).

Regarding the constitution of benches, the bill passed by the National Assembly today after amendments 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 above-mentioned committee.

“If the committee is of the view that a question of public importance with reference to 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 of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.

Justice Isa, Justice Aminuddin say CJP does not have powers to form special benches

Order postponement of all hearings based on suo motu notices and cases of constitutional significance until they are legislated upon.

www.dawn.com

 

[ghazi52]

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Reform package of dreams tainted by ‘bad timing’​

Syed Irfan Raza | Malik Asad
March 30, 2023

The bill aimed at curtailing the powers of the chief justice of Pakistan (CJP) may have sailed through the National Assembly, but it has generated a new controversy as timing of this legislation is being called into question; despite the fact that such reforms in the Supreme Court’s rules have been a dream of nearly all mainstream political parties in the country.

Not only the parties in the ruling alliance such as the PPP and PML-N, but even the PTI had plans to undertake comprehensive judicial reforms to address key issues, such as the appointment of judges, powers of suo motu, formation of benches. However, they were either reluctant or unable to do so in the past, when they held power.

Now, all eyes are on the Supreme Court, waiting to see how it will take the new legislation pertaining to its own domain — will it be acceptable to the court or will it adopt a more or less similar course of action through subordinate rules to put its own house in order.

The legal fraternity, however, seems divided on the proposed legislation.

Under the bill, the CJP has been deprived of his power to take suo motu action in an individual capacity, as well as his discretion over the formation of benches. The bill has proposed a committee consisting of three senior judges, including the CJP, to decide both matters.

One of the most significant aspects of the bill is that it has given, for the first time, a right of appeal to parties involved in suo motu cases.

But while the bill tabled by Minister for Law and Justice Azam Nazeer Tarar was welcomed by the ruling alliance, it was strongly rejected by the main opposition PTI, mainly because of its timing.

PPP Chairman Bilawal Bhutto-Zardari, speaking on the floor of the National Assembly on Wednesday, said that clipping the CJP’s powers on suo motu was a part of the Charter of Democracy, inked by the PPP and the PML-N in 2006, in addition to being suggested in 18th amendment.

Every party’s dream

Another PPP leader, Farhatullah Babar, told Dawn that although both parties had agreed upon judicial reforms in the CoD, at that time PML-N supremo Nawaz Sharif was reluctant to implement them as he was of the view that it could be considered later in parliament.

He said the PPP had demanded more, saying that there must a constitutional court in the SC which would only deal with cases of a constitutional nature.

Referring to Article 191 of the Constitution, Mr Babar said if the apex court did not make the much needed changes, the government could make the laws on its own.

Also speaking on the floor of the house on Wednesday, Defence Minister Khawaja Asif said that during the movement of the “restoration of judiciary” — when the PPP was in power — his party wanted to table a bill regarding judicial reforms, but the judiciary at that time was not ready for it.

PTI leader Fawad Chaudhry said that transparency in appointment of judges, use of suo motu powers and formation of benches was also addressed in his party’s proposed judicial reforms. “The main objection [we have now] is that the timing of the legislation only suits the rulers and does not serve the purpose of reforms,” he added.

“The present National Assembly, with an opposition leader like Raja Riaz, is illegitimate and thus has no moral authority to pass such legislation. The judicial reforms we have proposed should be discussed in the next parliament,” he added.

Mr Chaudhry said the right to appeal provided in the law would only benefit Nawaz Sharif — who was disqualified in the Panama Papers case, initiated under Article 184(3) of the Constitution.

Under normal circumstances, suo motu jurisdiction is invoked by the CJP alone and not by any other judge. However, the stance of some apex court judges including Justice Qazi Faez Isa, Justice Yahya Afridi, Justice Syed Mansoor Ali Shah and Justice Athar Minallah remained different, as they think that it should be a collective decision.

No need for an amendment?

Sources in the judicial bureaucracy said there was no need to amend the Constitution through a two-thirds majority, as the current legislation was aimed at amending the rules of the apex court and not Article 184(3) of the Constitution, from which the court derives its power of suo motu.

The rules are subservient to the Constitution; the government approves the rules of procedures of constitutional bodies and it is settled law that the authority that passed an order can undo it. The Supreme Court in a number of judgements has endorsed this dictum, sources said.

They said that judicial scrutiny of the law was always a possibility and the Supreme Court or even the high courts of the country had previously set aside a number of acts of parliament.

For example, the Islamabad High Court (IHC) partially struck down Section 20 of Prevention of Electronic Crimes Act (Peca), and last year it also set aside a presidential ordinance on local governments.

The apex court had also entertained petitions against the 18th Amendment when parliament changed Article 175 of the Constitution that deals with the appointment of judges in the superior courts and gave equal share to the Parliament in judicial appointments.

The government at the time, in order to save the legislation, introduced the 19th Amendment.

But former IHCBA president Shoaib Shaheen, who petitioned the Supreme Court to hold elections in Punjab and Khyber Pakhtunkhwa — a petition that was later merged into the suo motu proceedings — thinks otherwise.

Granting the right to appeal and streamlining suo motu proceedings would require a constitutional amendment, he said, adding that the government had introduced the “so-called reforms with mala fide intentions”.

Giving retrospective effect to the legislation shows that it has been designed to benefit certain politicians, he said, adding that these grounds were sufficient for the apex court of taking cognizance of the matter and strike it down, as was done with the Hasba bill in the past.

View of the judicial community

However, the Pakistan Bar Council (PBC), the apex legal regulatory body in the country, has an altogether different stance.

PBC Vice Chairman Haroon Rashid told Dawn that lawyers’ bodies from across the country were demanding streamlining of the discretionary powers of the CJP.

He said that while the Constitution was silent on this matter (Article 184 (3) vests the powers in the Supreme Court), the chief justice of Pakistan traditionally assumed this power, without proper regulations.

It is worth noting that former chief justice of Pakistan Asif Saeed Khan Khosa, in his full court reference on December 20, 2019, had said that “a working paper containing some proposed amendments to the Supreme Court Rules, 1980 so as to regulate suo motu exercise of this Court’s jurisdiction under Article 184(3) of the Constitution and to provide for an Intra-Court Appeal in that respect has been presented before the Full Court and the same is under active consideration.”

However, the full court of the apex court has yet to adopt these amendments.

According to Mr Rashid, the court can only set aside any legislation if it is deemed ultra vires to the Constitution or contradictory to the law.

In his opinion, the proposed legislation appears to be legal and in accordance with constitutional provisions.

Former Islamabad High Court Bar Association president Raja Inam Ameen Minhas also said that the act did not curtail any judicial power of the CJP, rather it has broadened the scope of suo motu proceedings.

He said the apex court was being criticised over excessive exercise of its suo motu jurisdiction as in the past, successive CJPs took notices on issues such as posting/transfers, sugar prices, construction and other peripheral issues.

He noted that certain segments of society, including the lawyers themselves, were not happy with the excessive suo motu notices, but now a voice for introspection was coming from within the Supreme Court, he added.

Mr Minhas was of the view that in case any petitioner challenged the law, the apex court could take up the petition in accordance with the new legislation.

Published in Dawn, March 30th, 2023

 

[El Sidd]

“Pemra’s complete prohibition to criticise judges offends the Constitution, law, morality and Islam.”

What has Islam go to do with this? Is it also against Islam the massive amount of luxuries and perks awarded to judges along with security?

 

[ghazi52]

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Growing debate over CJP’s powers​

The dissenting note comes days after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court called for revisiting the power of the “one-man show” enjoyed by the CJP, saying that the country’s top court could not “be dependent on the solitary decision of one man”.

The two had made the remarks in a detailed dissenting note — released on Monday hours after the apex court took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.

The two judges said the suo motu proceedings regarding the provincial elections stood dismissed by a majority of 4-3 and contended that the CJP did not have the power to restructure benches without the consent of the respective judges.

Prime Minister Shehbaz Sharif had hailed the dissenting note as a “ray of hope” during his National Assembly speech and called for relevant legislation in its wake.

On Wednesday, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the CJP office of powers to take suo motu notice in an individual capacity. Earlier today, the bill was passed by the Senate amid a protest by opposition.

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 above-mentioned committee.

“If the committee is of the view that a question of public importance with reference to 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 of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.

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

Regarding appeals for any verdict by an apex court bench which 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 Supreme Court 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 retroactively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Supreme Court (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, “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.

 

[Jango]

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Supreme Court (Practice and Procedure), Bill 2023,

CJP does not have powers to form special benches​

Haseeb Bhatti
March 29, 2023

Justice Qazi Faez Isa and Justice Aminuddin Khan, in a detailed order of the Supreme Court on Wednesday, noted that the chief justice of Pakistan (CJP) does not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance — under Article 184(3) — should be postponed until they are legislated upon.

The two judges passed the order in a case pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that suggested an award of 20 additional marks to candidates for memorising the Holy Quran by heart to get MBBS or BDS degrees.

The case was heard by the aforesaid judges as well as Justice Shahid Waheed — who dissented from their verdict and will write his separate opinion.

The order, a copy of which is available with Dawn.com, first questioned why the special bench comprising judges from three different benches was formed to hear the case. “The question arises, why couldn’t an existing regular bench hear this case? The record does not disclose the reason for the constitution of this special bench, nor do we know,” the order reads.

“Neither the Constitution nor the rules grant to the chief justice (or the registrar) the power to make special benches, select judges who will be on these benches and decide the cases which they will hear.

“There is also no additional, incidental, ancillary or residual power with the chief justice which could be used to do this. Yet, unfortunately, this is being done and sometimes with grave consequences. Important aspects with which arose out of Article 184(3) of the Constitution were decided with significant consequences on the economy, politics and on other aspects of the lives of Pakistanis.”

At the order’s outset, the two judges said the Supreme Court Rules (1980) neither permit nor envisage special benches, adding that they did not know why a special bench was constituted for hearing their case and asked why a regular existing bench could not hear it.

Criticising special benches, the order said they provide detractors with the opportunity to claim the bench was “tailor-made to give a particular decision”.

“When benches are tailored and judges of a particular understanding or inclination are placed together to hear a particular case then doubts, suspicion and misgivings arise. A decision from an adjudicatory process which is perceived to be structured to obtain a particular decision invariably results in severe criticism.

“The matter assumes criticality when objections taken on the constitution of special benches and requests made for hearing by the full court are not attended to and no order disposing of such objections and requests is passed,” the order reads.

Postpones Article 184(3) cases​

Regarding Article 184-3 (matter of public importance) of the Constitution, the order highlighted that it had three categories of cases: a formal application filed for enforcement of fundamental rights, a suo motu notice taken by the apex court and cases of “immense constitutional importance and significance”.

The two judges said that Order 25 of the Supreme Court Rules (1980) only catered to the first category of cases with no procedure ascribed for the second and third categories.

“The situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution. The rules also do not provide how to attend to the following matters: how such cases be listed for hearing, how bench/benches to hear such cases be constituted and how judges hearing them are selected.”

The order said the apex court, comprising the CJP and other Supreme Court judges, was empowered to make rules on the above matters and the Constitution “does not grant to the chief justice unilateral and arbitrary power to decide the above matters”.

The two judges said the CJP “cannot substitute his personal wisdom with that of the Constitution” and collective determination by the CJP and other apex court judges cannot also be assumed by an individual.

“The interest of citizens therefore will be best served to postpone the hearing of this case and of all other cases under Article 184(3) of the Constitution till the matters noted herein above are first attended to by making requisite rules in terms of Article 191 of the Constitution.”

Pemra ban on judicial criticism​

The two judges also addressed the Pakistan Electronic Media Regulatory Authority’s (Pemra) prohibition on the broadcasting and rebroadcasting of content pertaining to the conduct of sitting high court and Supreme Court judges on electronic media, and criticised it.

The judges noted that the judiciary would be flawed if it was not “open to constructive criticism”, the people’s feedback could help to identify shortcomings and constructive criticism served the judiciary’s interest.

They termed the Pemra ban as a “gagging order” and said no reason was disclosed for its issuance. The order added that the “unsolicited media-gagging order brings the judiciary into disrespect and disrepute as citizens will assume that it has been issued on the direction of judges with a view to cover discrepancies, illegalities and/or blemishes.”

In a further damning indictment of the ban, the judges said: “Pemra’s complete prohibition to criticise judges offends the Constitution, law, morality and Islam.”

Growing debate over CJP’s powers​

The detailed verdict comes two days after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court had called for revisiting the power of the “one-man show” enjoyed by the chief justice, saying that the country’s top court could not “be dependent on the solitary decision of one man”.

The two had made the remarks in a detailed dissenting note — released on Monday hours after the apex court took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.

The two judges said the suo motu proceedings regarding the provincial elections stood dismissed by a majority of 4-3 and contended that the CJP did not have the power to restructure benches without the consent of the respective judges.

Prime Minister Shehbaz Sharif had hailed the dissenting note as a “ray of hope” during his National Assembly speech and called for relevant legislation in its wake.

Earlier today, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the CJP office of powers to take suo motu notice in an individual capacity.

Notably, the bill legislated regarding some of the issues raised by Justice Isa and Khan about Article 184(3).

Regarding the constitution of benches, the bill passed by the National Assembly today after amendments 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 above-mentioned committee.

“If the committee is of the view that a question of public importance with reference to 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 of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.

Justice Isa, Justice Aminuddin say CJP does not have powers to form special benches

Order postponement of all hearings based on suo motu notices and cases of constitutional significance until they are legislated upon.

www.dawn.com

So basically they gave an order regarding everything under the sun except the actual case they had been hearing since 14 months?

 

[ghazi52]

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The same gents who were once joyous at the chief justice’s powers are now weeping tears of rage​

Asad Rahim Khan
April 1, 2023

It remains for the court to regulate itself.

AROUND this time a year ago, the Constitution was at risk. To frustrate the will of parliament, the deputy Speaker had thrown out its vote of no-confidence against a falling prime minister. But the Supreme Court stepped in: it took suo motu, undid the Speaker’s ruling, and restored the Assembly.

And the bells tolled loud and long: ‘We profusely thank the Supreme Court,’ said Shehbaz Sharif. PTI partisans, meanwhile, screamed blue murder about biased judges.

Amid all the noise though, there was little debate — with a few exceptions — about whether the opposition was justified in going for the vote. Or whether the chief justice should form a full court of his own accord. Or the nature of suo motu itself.

And perhaps rightly so: as senior counsel Feisal H. Naqvi quoted recently: “The main thing is to keep the main thing the main thing.”

It remains for the court to regulate itself.

The main thing last April was a prime minister trying to keep his enemies out of power by violating the Constitution. The Supreme Court stopped him. The main thing this April is a prime minister trying to keep his enemies out of power by violating the Constitution: delaying polls in two provinces set for 90 days. The Supreme Court stopped him again. But this time, the discussion is about everything but: from the regulation of suo motu to the formation of benches to the floods of 1988.

And yet what’s triggering this national nosebleed is clear: a widely despised minority government trying to prevent a specific outcome — elections within 90 days. The same gents once delirious with joy over the chief justice’s powers now weep tears of rage.

But none of the excuses trotted out so far pass muster. Consider a few: could the chief ministers dissolve their assemblies? (Yes, because they did it as provided for in the Constitution — one fresh from a vote of confidence in Punjab; the other with a thumping majority in KP.)

Then, could the chief justice take suo motu at all? (Yes, because of democracy’s destruction when the ECP broke the law, the governors shrugged, and all refused to obey the direction of the Lahore High Court’s Justice Jawad Hassan mandating 90 days.)

Then, what about a full court? (While there’s no harm, no law or precedent warrants one; nor is this a case of first impression, just the glaringly obvious: elections must be held in 90 days. The last full court we had was for whether the Constitution had a basic structure during the military courts case; it went on to deliver the silliest, most divided, and most incoherent plurality in history.)

As law students know, these are all Tamizuddin-esque sideshows. In ‘Tamizuddin’, justice Munir never actually decided the main thing: whether the assembly was sovereign. He twiddled his thumbs over technicalities instead, and wrecked democracy.

This time, however, it’s a different story: the same Bandial court that restored the Assembly the PTI government aborted, again upheld the law on March 1 — polls within 90 days.

Hence also the unity regime’s latest clownish attempt — à la Israel’s Netanyahu — to declaw the judiciary: a bill that snatches away the chief justice’s powers to take suo motu and form its benches, spreading it over a committee of three, with a fresh appeal that all our disqualified-for-lifers are rubbing their hands over.

But seeing as naughty thoughts shouldn’t be pegged to the legislature, let’s look at the law. Most legal eagles point to Article 191 in its favour, which reads: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”. The ‘law’ in question, they argue, being the new bill.
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Only, a five-member bench has already held the conferral, and exercise of suo motu isn’t a matter of procedure at all: “The tripartite categorisation of the judicial process,” held Justice Munib Akhtar, “…is not a matter of mere procedure; it is part of the very essence of the judicial power.”

The court has elsewhere reaffirmed the clause “subject to law” doesn’t mean “a statute can control or curtail the power conferred on the superior Courts by this Article.” It remains for the court to regulate itself.

Even otherwise, Item 55 of the Federal Legislative List excludes parliament from legislating on the court’s powers or jurisdiction (like grafting new floors of appeal on top what’s already in the supreme text). If PDM wants to interfere, it must amend the Constitution, not pass some bill at midnight under a banana tree.

Finally, a thought to actual practice: judges must themselves step away from samosa prices and policy. But the suo motu is the natural result of facing an all-out assault by Musharraf, and winning.

Diffusing that power by three, given these divides, renders it dysfunctional — the last hurdle protecting an independent judiciary. Then back we go to Quetta registries, to judges yanked by the hair.

There can be no more of that.

The writer is a barrister.

 

[ghazi52]

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President Alvi returns Supreme Court (Practice and Procedure) Bill 2023 to parliament​

• Says proposed legislation is beyond the jurisdiction of the legislative body and is susceptible to challenge

BR
April 8, 2023

President Arif Alvi on Saturday returned the Supreme Court (Practice and Procedure) Bill 2023 to the parliament, citing that the proposed legislation is beyond the jurisdiction of the legislative body and susceptible to challenge as a specious enactment.

He also called for its reconsideration to meet scrutiny about its validity.

https://twitter.com/x/status/1644576310809841664

In a letter, Alvi wrote that “in order to meet the scrutiny about its validity (if assailed in the Court of law), I have thought it fit and proper as per the provisions of Article 75 of the Constitution to return the Bill with the request for reconsideration.”

The draft of the bill proposes delegating the chief justice’s powers to take suo motu notices and constitute benches to a three-member committee consisting of the CJP and two senior most judges.

One of these amendments is the right to appeal against suo motu verdicts taken up to 30 days before the passing of the Lawyers’ Protection Act. Another is that any case that involves interpreting the Constitution will not have a bench with fewer than five judges.

On March 28, the National Assembly (NA) sent the bill to a committee on law after legislators called for a detailed debate on it.

On March 29, NA passed the bill through a simple majority after the Pakistan People’s Party (PPP) withdrew its proposed amendments.

The federal cabinet also approved the bill. On March 30, the Senate approved the Supreme Court (Practice and Procedure) Bill 2023.

After this, the bill was sent to President Alvi.

During the debate, the law minister pointed out that “for the past year, two senior SC judges have not been included in any important bench. This should not happen.”

He was of the view that suo moto power was being used as a “one-man show”. He also stressed that a constitutional amendment was not needed to reduce chief justice’s powers.

 

[ghazi52]

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Joint parliament session adopts Supreme Court amendment bill​

BR
April 10, 2023

The joint parliament session on Monday approved the Supreme Court (Practice and Procedure) Bill, 2023 aimed at curtailing the powers of the chief justice of Pakistan (CJP) — including the suo motu and the formation of benches — with a majority after the President Dr Arif Alvi returned the bill unsigned.

 

[ghazi52]

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Bill curtailing CJP’s powers challenged in SC, IHC​

The Newspaper's
April 12, 2023

ISLAMABAD: A day after a joint session of parliament adopted a bill seeking to curtail the powers of the chief justice of Pakistan, lawyers challenged the piece of legislation in the Supreme Court and the Islamabad High Court (IHC) on Tuesday through similar petitions.

The bill, which was earlier passed by both houses last month but was later returned by President Arif Alvi, was approved by the joint session with some amendments on Monday.

The petition in the Supreme Court was filed by Advocate Muhammad Shafay Munir, who challenged the legislation — the Supreme Court (Practice and Procedure) Bill 2023 — insisting that the plea had been filed to safeguard and secure the Constitution and independence of the judiciary.

In the petition, moved under Article 184(3) of the Constitution, Mr Munir contended that the petitioner believed in the supremacy of the Constitution, the rule of law, and independence of the judiciary and had always strived and struggled to protect the Constitution, independence of the judiciary and fundamental rights guaranteed under the Constitution.

The respondents named in the petition included the federal government through the secretaries of law, Senate and National Assembly.

A similar petition filed in the IHC contended that the bill had limited the CJP’s jurisdiction, as it made it mandatory for him to consult senior judges while forming benches.

It said that though the legal fraternity demanded the right of appeal against suo motu proceedings, it could have been made without curtailing CJP’s powers.

Both petitions requested the court to declare the Supreme Court (Practice and Procedure) Bill 2023 as illegal and void ab initio.

 

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SC larger bench to hear bill curtailing CJP’s powers on April 13​

Judges who recently wrote dissenting notes are not part of the eight-member larger bench

News Desk
April 12, 2023

An eight-member larger bench, led by Chief Justice of Pakistan Umar Ata Bandial, will hear petitions against the bill. PHOTO: FILE

An eight-member larger bench, led by Chief Justice of Pakistan Justice Umar Ata Bandial, will hear petitions against the Supreme Court (Practice and Procedure) Bill on April 13, Express News reported.

The development comes after the joint sitting of parliament passed the bill with amendments days after President Dr Arif Alvi returned the bill seeking to curtail the CJP's powers to initiate suo motu and constitute benches amid protest by the Pakistan Tehreek-e-Insaf senators.

The bench included Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Mazahir Naqvi, Justice Muhammad Ali Mazahar Naqvi, Justice Ayesha Malik, Justice Hasan Azhar Rizvi, and Justice Shahid Waheed. The judges who recently wrote dissenting notes are not part of the larger bench.

The bill was challenged in the apex court on Tuesday. One of the petition, filed by Advocate Muhammad Shafay Munir, claimed that the bill should be declared illegal and unconstitutional as only the top court had the authority to make its own rules. The petition made the federation of Pakistan through its secretary and the minister for law and justice as respondents among others.

Munir filed a Constitutional petition under Article 184(3) to “safeguard the Constitution and independence of [the] judiciary as safeguarded and fully secured in the preamble of the Constitution”.

The petition stated that during the proceedings of the Supreme Court’s suo motu hearing regarding the delay in Punjab polls, “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.

It continued that with its “agenda”, the incumbent government through the Ministry of Law proposed a bill for the curtailment of powers of the CJP in a “hurry without adopting the due course of law and in violation of Article 70 (1 and 4) of the Constitution”.

It stated that the bill was presented to the president for his assent but was sent for reconsideration by Alvi because it “was against the above-said Constitutional provisions”.

“Again, without taking into consideration and discussions on the objections by the president on [the] bill in question, the Parliament again in a hurry and without adopting the due course of law, beyond [the] powers of the Parliament, passed the bill on April 10 in a joint session”.

The petition contended 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.

Outlining its grounds, the petition 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”.

It continued that the powers to make SC rules were “expressly entrusted” to the court itself and not to the Parliament.

Therefore, it stated, the Parliament did not have the powers to “enact any sort of legislation in relation to the powers and procedures of the Supreme Court”.

Citing 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 SC, but not to curtail its powers.
According to the petition, the SC while exercising powers under Article 191 of the Constitution, has already framed rules regulating its procedure and practice, and “Order X1 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.

“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, hence, 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 Third Majority but not by single majority by way of passing [the] bill in an ordinary manner”.

The petition prayed that the top court accepts the petition and declare the “impugned” bill as “ultra vires and unconstitutional and of no legal effect”.

 

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SC amendment bill: Top court issues notices to PM, president​

• The ruling coalition has rejected the SC bench set to hear the petitions

BR
April 13, 2023

The Supreme Court (SC) issued on Thursday notices to President Dr Arif Alvi, Prime Minister Shehbaz Sharif, the federation, bar councils and others as it took up several petitions against the Supreme Court (Practice and Procedure) Bill, 2023.

Chief Justice of Pakistan (CJP) Umar Ata Bandial presided over the eight-member bench to hear the case. The bench also includes Justice Ijazul Ahsan, Justice Mazahir Naqvi, Justice Munib Akhtar, Justice Ayesha Malik, Justice Muhammad Ali Mazhar, Justice Hasan Azhar Rizvi and Justice Shahid Waheed.

Meanwhile, the ruling coalition has rejected the SC bench set to hear the petitions, vowing to resist attempts to take away parliament’s authority and to interfere in its constitutional scope.


The ruling coalition leaders — which included members of the PML-N, PPP, MQM-P, ANP and other allied parties also held a presser today. Law Minister Azam Nazir Tarar said that the current situation was “very alarming”.

“Two senior judges have not been included in the bench that has been made after a pick and choose,” the Tarar added. He was referring to Justices Qazi Faez Isa and Sardar Tariq Masood, the senior-most judges after the chief justice.

Meanwhile, PPP leader Qamar Zaman Kaira urged the CJP to dissolve the bench, emphasising that the ruling parties would not tolerate its existence.

On April 10, the joint sitting of Parliament passed the Supreme Court (Practice and Procedure) Bill, 2023, with amendments days after President Dr Arif Alvi returned the bill seeking to curtail CJP’s powers to initiate suo motu and constitute benches amid protest by the Pakistan Tehreek-e-Insaf (PTI) senators.

Advocate Muhammad Shafay Munir on Tuesday filed a constitutional petition under Article 184(3) to “safeguard the Constitution and independence of (the) judiciary”, and cited the secretary Ministry of Law and Justice, the secretary Senate, and the secretary of National Assembly as respondents.

Meanwhile, another citizen Saeed Aftab Khokhar also submitted a petition to the Islamabad High Court (IHC) in this regard. The petitioners have prayed to the apex court to declare the “impugned” bill as ultra vires and unconstitutional and of no legal effect.

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.

Meanwhile, the Pakistan Bar Council (PBC) has called on lawyers to boycott courts on Thursday to protest the formation of a “one-sided and controversial bench”. A late-night announcement by PBC Vice Chairman Haroonur Rashid and Executive Committee Vice Chairman Hassan Raza Pasha said that the CJP formed the bench in haste for hearing the petitions.

 

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SC puts on hold non-existent law in pre-emptive strike​

Nasir Iqbal
April 14, 2023

• Eight-judge bench justifies move by saying bill tinkering with court’s internal working was ‘set to become law’; fears meddling as soon as it is enacted

• Judges wonder if parliament has power to legislate the issue; AGP regrets court’s disregard for settled case law

ISLAMABAD: In an “anticipatory injunction”, the Supreme Court on Thursday barred the government from enforcing a proposed law targeting the suo motu powers of the top judge, saying the move would “prevent imminent apprehended danger that is irreparable” as soon as the bill becomes an act of parliament.

“The moment that the bill receives the assent of the president or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the act that comes into being shall not have, take or be given any effect nor be acted upon in any manner,” said an interim order issued on Thursday evening by an eight-member bench.

“The court has great respect for parliament but it also has to examine if any constitutional deviation, violation or transgression has taken place while enacting the Supreme Court (Practice & Procedure) Bill, 2023,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial, who was heading the bench.

The bench comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed observed that there appeared to be no authorisation under the Constitution that allows parliament to confer an appellate jurisdiction on the court, which is now being created.

The larger bench, which had taken up a set of three petitions challenging the proposed law — filed by Raja Amer Khan, Chaudhry Ghulam Hussain, and Muhammad Shafay Munir — also hinted at the possibility of appointing an amicus to assist the court.

The Supreme Court also issued notices to the respondents — principal secretaries to the president, prime minister, the federal government through the secretary law, the attorney general, Pakistan Bar Council, Supreme Court Bar Association, as well as to the political parties, who may appear through duly instructed counsel, if they desire.

Meanwhile, outside the courtroom, a large contingent of Rangers with anti-riot gear was deployed on the court premises alongside police to counter any untoward incident after a sizeable number of lawyers from the PTI camp also demonstrated for the second consecutive day, to show solidarity with the CJP.

Passed by a joint session of parliament earlier this week after it was returned by President Arif Alvi, the bill is once again awaiting

presidential assent to become an act of parliament. But even if the president does not sign the bill, the same would have been considered passed into law within ten days of its passage.

Independence of judiciary

The bench, which started proceedings slightly later than scheduled, first heard the arguments of Advocate Imtiaz Siddiqui, who declared that the bill was a “proposed act” since it would eventually become the act of the parliament by April 20.

In its order, the court said it was concerned with the independence of the judiciary, in particular the Supreme Court. Issues of public importance with regard to the enforcement of fundamental rights are involved in the case, which requires consideration and decision by the court, the order issued in the evening said.

Referring to the question of whether it would be appropriate to make any interim order in relation to the present matter, the court cited the 2010 Dr Mobashir Hassan (NRO) case. “In our view, the facts and circumstances presented here are extraordinary both in import and effect,” the order said, adding that prima facie, the contentions raised by the counsel disclosed that there was a “substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions”, in the guise of regulating the practice and procedure of this court and conferring upon it a jurisdiction that appears not permissible under any constitutional provision.

“Such intermeddling in the functioning of the Supreme Court, even on the most tentative assessment, will commence as soon the bill becomes the act,” the order explained. The order maintained that though the bill was not a law yet, it will have the force of law when the act comes into being. Therefore, the bench ruled, it can be considered and examined even at this stage.

It is possible even now, as the bill moves seamlessly through time towards becoming an act, to consider whether what parliament seeks to do passes muster constitutionally, the order said, adding that the bill prima facie seems to be open to question on the constitutional plane on several grounds which raise issues of a serious nature in relation to the independence of the judiciary.

Such independence is deeply rooted in the fabric of the constitution and forms an integral part of the structure of fundamental rights adding the bill, in clauses 2 to 4, seeks to regulate the manner in which causes or appeals before the court were to be heard, in particular, the benches that were to hear and decide the same.

Role of Article 191

On first impression, the bill appears to be premised on the approach that Article 191 purportedly sets up a hierarchy in relation to the practice and procedure of the court, the order said.

The regulation of the matters laid out in clauses 2 to 4 purports to trump anything contained in the Supreme Court rules, it said, adding that the bill seeks to reinforce this in clause 8 by giving overriding effect to its provisions over not only any “rules” but also any judgement of any court, including this court. Prima facie, this approach is a serious encroachment upon, interference with and intrusion into the independence of the judiciary, the order feared.

“Any intrusion in the practice and procedure of the court, even on the most tentative of assessments, would appear to be inimical to the independence of the judiciary, no matter how innocuous, benign or even desirable the regulation may facially appear to be,” the order explained.

Prima facie, when the bill is examined on the anvil of the most fundamental principles that underpin the Constitution, it can be regarded as seriously wanting in constitutional competence, the judgement said.

The bill also purports to confer a new appellate jurisdiction on the court however, it is highly doubtful whether parliament can do this since a right of appeal is not merely a matter of practice or procedure but is a substantive right, the order said.

It would therefore seem, that the appellate jurisdiction now sought to be conferred is beyond any competence conferred by Article 191, whether on the Supreme Court itself or any “law’’ purported to be made by parliament.

AGP’s reaction

Separately, in a statement issued after the SC passed its interim order, Attorney General for Pakistan Mansoor Usman Awan said the way the case had proceeded was quite disappointing.

There was a clear impression that the case would be heard during next week, for which notices were being issued and recalled that a 12-member bench had held in the Aitzaz Ahsan case that the operation of a law cannot be suspended, and this judgment has consistently been followed by the courts.

However, he regretted how the court had disregarded settled jurisprudence in a most unusual manner.

Published in Dawn, April 14th, 2023

 

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[lightning F57]

If this was a match Umar Ata Bandial has in the last few overs been wacking 6s against PDM+establishment bowlers. At this rate game could be over before PDM come to bat.

 

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President refuses to sign bill on suo motu powers​

Today .
Alvi says matter sub júdice before apex court.