Independent judiciary main component of Constitution, observes CJP

Chief Justice of Pakistan (CJP) Umar Ata Bandial observed on Tuesday that an independent judiciary was a main component of the Constitution.

He made the remarks as an eight-member larger bench of the Supreme Court heard a set of plea challenging a bill, which has since become an act of Parliament, seeking to curtail the powers of the CJP.

The bench comprised CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

The three petitions were filed under Article 184(3) of the Constitution by Advocate Muhammad Shafay Mu­nir, Raja Amer Khan, Chaudhry Ghulam Hussain and others.

The bill proposes taking away the individual authority of the chief justice to initiate suo motu proceedings and unilaterally form benches and vests them in a panel comprising the CJP and two senior-most SC judges. It also calls for the right to appeal suo motu decisions.

Action on the bill was preemptively frozen by the court even before it became law last month.

Barrister Salahuddin appeared on behalf of the PML-N while Farooq Naek appeared on behalf of the PPP. Meanwhile, Hassan Raza Pasha represented the Pakistan bar Council (PBC).

At the outset of the hearing, the CJP said that the previous order issued by the court was of an interim nature. He said that democracy was a key component of the country’s Constitution.

“A free judiciary and Centre are also important features of the Constitution,” he said, adding that the case at hand concerned the independence of the judiciary.

CJP Bandial said that the court expected “serious arguments” from the parties in the case, adding that the large bench would have to provide “excellent assistance”.

CJP Bandial also remarked that the law in question was the first of its kind in Pakistan. “This law concerns the third pillar of the state,” he said.

He said that there was no changing the fact that an independent judiciary was a main feature of the Constitution. “It is being alleged that for the first time, a fundamental component of the Constitution has been violated through a [piece of] legislation.”

The court then sought detailed answers from all parties in the case on May 8. The court also sought the parliamentary record of the law as well as the arguments in the relevant standing committee.

During the hearing, the PBC’s lawyer contended that the council had always fought for the rule of law and the judiciary. “It would be appropriate if a full court is constituted to hear the case,” he said, adding that no one would object to a bench which included seven senior-most judges.

He also highlighted that several references had been filed against one of the members of the current SC bench in the Supreme Judicial Council (SJC) and called for Justice Naqvi to be excluded from the bench.

Justice Bandial remarked that constituting a full court was the CJP’s prerogative. He went on to say that a reference could not bar a judge from working.

“A judge can’t be stopped from working until the SJC gives its opinion,” the CJP said, adding that the court had made the same decision during the proceedings against Justice Qazi Faez Isa.

“Complaints against judges, including me, come from time to time,” the CJP said, adding that political matters had “polluted” the top court’s environment.

“Political people want favourable decisions, not justice,” he said. He noted that a demand for constituting a full court had also been put forth during the hearing of the case concerning holding elections in the country.

He observed that all the country’s institutions were bound to implement the directives issued by the top court. The PBC’s request for a full court was subsequently rejected.

The court also rejected the attorney general’s request for vacating the anticipatory injunction on the law.

“First, explain to us what the law is and why it was made,” the CJP said. The hearing was then adjourned for May 8 (Monday).

‘Conflict of interest’

Meanwhile, Special Assistant to the Prime Minister (SAPM) on Interior Attaullah Tarar said said that the coalition government wanted seven-most senior judges of the Supreme Court to preside over the case.

Speaking to the media today alongside SAPM Malik Muhammad Ahmad Khan in Islamabad, Tarar termed the CJP’s inclusion in the bench to be a “conflict of interest”.

He said that during today’s hearing, the bar councils had objected to Justice Naqvi’s inclusion in the bench while the attorney general had also highlighted the references against the judge. Tarar said that the top court had sought a detailed response in this regard.

Tarar maintained that Justice Naqvi should not be a part of any bench until the allegations against him were proven to be false.

Bill becomes law

Article 184(3) of the Constitution sets out the SC’s original jurisdiction, and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.

The bill, titled the Supreme Court (Practice and Procedure) Bill 2023, was aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity.

The draft law was initially passed by both houses of Parliament in March and sent to the president for his assent. However, the president had sent it back, saying that the proposed law travelled “beyond the competence of parliament”. The bill was subsequently adopted by a joint session of parliament on April 10 — albeit with some amendments.

Meanwhile, the top court — while hearing the three petitions challenging the then-bill — in an “anticipatory injunction” on April 13, barred the government from enforcing the draft law, saying the move would “prevent imminent apprehended danger that is irreparable” as soon as it became 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 the interim order issued by the eight-member bench.

The ruling coalition government was swift to reject the apex court’s ruling and on April 19 the president again refused to give his assent and sent the draft law back to Parliament.

Despite this, the bill technically became an act of parliament on April 21 under Article 75(2) of the Constitution, and despite the court’s order halting the law’s implementation, the National Assembly Secretariat formally asked the Printing Corporation of Pakistan (PCP) to publish it in the official gazette.

Article 75(2) of the Constitution says that when the president has returned a bill to the parliament, it shall be reconsidered in a joint sitting. If it is again passed, with or without amendment, by the votes of most members of both houses, it is again referred to the president for their assent. If the bill was not signed by the president within 10 days, their assent would have been deemed granted.

According to the legislation, a three-member bench consisting of the CJP and the two senior-most judges of the apex court will decide whether to take up a matter suo motu. Previously, this was solely the prerogative of the chief justice.

The law also states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench, which will be formed by a committee comprising the chief justice and the two senior-most judges.

The legislation also includes the right to file an appeal within 30 days of the judgement in a suo motu case and that any case involving constitutional interpretation will not have a bench of fewer than five judges.

The bill would allow former prime minister Nawaz Sharif and other parliamentarians disqualified by the Supreme Court under suo motu powers (such as Jahangir Tareen) to appeal their disqualification within 30 days of the law’s enactment.

‘First time act suspended even before it became law’

Speaking to reporters outside the Supreme Court in Islamabad, PPP leader and lawyer Farooq H. Naek stated that this was the “first time that an act has been suspended before it was implemented”.

“The Constitution allows parliament to make laws regarding the Supreme Court’s procedure,” continued Naek. He added that the bill is “not affecting the public at large then it doesn’t come under the jurisdiction of Article 184 (3)”.