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ISLAMABAD: The Supreme Court has declared that the moment Supreme Court (Practice and Procedure) Bill, 2023 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.

An eight-member bench, headed by Chief Justice Umar Ata Bandial, and comprising 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 heard the petitions.

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 praying to set aside the Bill 2023. They cited federation through Secretary Law and Justice, Minister of Law, Principal Secretaries to the Prime Minister and the President as respondents.

Joint parliament session adopts Supreme Court amendment bill

It issued notices to the respondents, attorney general for Pakistan, vice-chairman Pakistan Bar Council, president Supreme Court Bar Association and to Pakistan Muslim League (N) (PML-N), Pakistan Peoples Party Parliamentarians (PPPP), Pakistan Tehreek-e-Insaf (PTI), Jamiat Ulema-e-Islam (JUI), Jamaat-e-Islami (JI), Awami National Party (ANP), Muttahida Qaumi Movement (MQM), Balochistan Awami Party (BAP) and Pakistan Muslim League (Q) (PML-Q), to appear through duly instructed counsel, if they so desire.

The court noted that though the bill is not yet law it is nonetheless, with exactitude, that what will have the force of law, when the Act comes into being. Therefore, it can be considered and examined even at this stage.

Advocate Imtiaz Siddiqui, representing Raja Amir Khan, at the end of his arguments, requested for interim relief by way of either the suspension of the bill or a direction to the president not to assent to it and/or an order to the Law Ministry not to notify the Act.

The order said; “In our view an interim measure ought to be put in place, in the nature of an anticipatory injunction. The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognized in our jurisprudence and other jurisdictions that follow the same legal principles and laws.

“We are here concerned with the independence of the judiciary, and in particular this Court, in institutional terms and according to the mandate of the Constitution. Issues of public importance with regard to the enforcement of fundamental rights are involved which require consideration and decision by the Court.”

It said that the bill prima facie seems to be open to question on the constitutional plane on several grounds which, inter alia, 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. Indeed, it is itself one such right. Any legislative effort that interferes with, or impinges on, the same should be subjected to close scrutiny.

It questioned; “Can the legislature, in the shape of a power claimed in terms of Article 191, have any such competence (to regulate the Court power)? The very existence of any such power needs to be determined, and not simply its application to this or that situation. It is not a matter of the power, in a given case, being exercised benignly or for purposes claimed as salutary (as appears to be professed for clauses 2 to 4). That is not the essence of the matter.

Interference with fundamental rights is kept beyond legislative and executive incursion unless expressly permissible (in the shape of articulated reasonable restrictions).

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. Prima facie therefore, when the Bill and the Act that is soon to come into being, 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 bill also (in clause 5, soon to become s. 5) purports to confer a new appellate jurisdiction on the Court in exercise of legislative power under Article 191.

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

If the conferment of appellate jurisdiction is considered in terms of a legislative competence available otherwise to Parliament one must turn to entry No 55 of the Federal Legislative List. On a tentative examination of this constitutional grant, it would seem that it, firstly, expressly excludes this Court from the power of Parliament to legislate as regards the “jurisdiction and powers” of courts in relation to the List, and secondly, allows for the enlargement of the jurisdiction of the Court only if it is “expressly authorized by or under the Constitution”. There appears to be no authorization by or under the Constitution, let alone an express one, as allows Parliament to confer an appellate jurisdiction on the Court of the sort now sought to be created.

Imtiaz contended that the parliamentarians have violated their oaths and have clogged the power of the chief justice. He questioned can the parliamentarians be allowed to regulate the functions of the court, and said that the bill is ultra vires.

He said that in the current scenario, the case held a lot of importance. He stated that ever since the National Assembly was restored in April last year by the Supreme Court, the political divide and crisis had increased. The federal government and the Election Commission of Pakistan (ECP) are not willing to hold polls in Punjab and KP.

Imtiaz recalled that the apex court had taken a suo moto notice last month and subsequently instructed the government to hold elections. “On April 4, the court once again passed the same orders,” he said but at the same time highlighted that a deeper crisis had emerged after the apex court’s orders.

Copyright Business Recorder, 2023

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Truthisbitter813 Apr 14, 2023 08:01am
The CJP rejecting a bill meant to reign in rampant abuse of CJP authority. What a farce!
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Tulukan Mairandi Apr 14, 2023 10:04am
The CJP is an Imran lackey who will do anything to his master's bidding, including collapsing the entire country. Already our people are washing up on foreign shores to escape this hell.
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Parvez Apr 14, 2023 04:18pm
Can the Constitution be altered by a Parliamentary Bill ?.... by a parliament that is ' moth-eaten ' and discredited.
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