Pakistan’s Parliament on March 30 passed a Bill to curb the powers of the Chief Justice of the Supreme Court regarding suo motu cases and the constitution of benches, in a significant move to rein in the top judiciary amid criticism by the Opposition.
Minister for Law and Justice Azam Nazeer Tarar introduced ‘The Supreme Court (Practice and Procedure) Bill, 2023’ on Thursday in the Senate, a day after it was passed by the National Assembly — the lower house of the parliament.
There were 60 votes in favour of the Bill and 19 against it. The Bill will now be presented to President Arif Alvi for his assent. If the president does not give his approval within 10 days, it will be deemed to have been given.
Senators from former prime minister Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) party opposed the Bill in the Senate, saying it was in violation of the Constitution as matters related to the Supreme Court could be dealt with amendments in the Constitution through a one-third majority.
“You cannot change the system of the Supreme court through a law passed by simple majority,” Senator Ali Zafar of PTI said during the debate, as he also demanded that the Bill should be sent to a bipartisan Senate committee to discuss it before putting it up for voting.
However, his concerns were overruled and the Bill was passed.
The PTI senators protested against the move and Ali Zafar warned that it would be challenged in the Supreme Court which he was sure would strike it down.
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 Chief Justice 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, called suo motu powers, the Bill said that any matter invoking the use of Article 184(3) would first be placed before the 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.
Currently, the Chief Justice takes decisions about the use of suo motu powers and also constitutes various benches to hear cases.
Earlier, the Bill was approved by the federal Cabinet on March 28 and presented in the National Assembly, which passed it on Wednesday.
The new law was initiated after two Supreme Court judges questioned the suo motu (on its own) powers of the country’s top judge. It is said that the government is using the internal rift in the top judiciary to clip the wings of the Chief Justice for ulterior motives.
On Tuesday, Prime Minister Shehbaz Sharif told lawmakers that “history would not forgive us” if parliament did not enact laws to curtail the powers of the country’s top judge.
The former prime minister and PTI chief Imran Khan has lashed out at the federal government for trying to clip the discretionary powers of the country’s Chief Justice, asserting that the move was aimed at putting more pressure on the judiciary.
“Every one of us wants judicial reforms. But, their [the PDM parties’] only goal is to escape from the election,” Mr. Khan said on Tuesday.
“The attack on the Supreme Court of Pakistan by the gang of criminals, the attempts to reduce its powers and degrade it, is being strongly resisted by the people and this resistance will continue,” Mr. Khan tweeted.
Mr. Khan, 70, said the current dispensation took the decision in a hurry, only to put pressure on the judiciary.
The suo motu power is based on the original jurisdiction of the court under Article 184 of the Constitution. However, its usage over the years has created an impression of partiality on the Chief Justices’ part.
It was openly challenged for the first time by the two judges who were part of a bench that, in its 3-2 majority decision of March 1, directed the Election Commission of Pakistan (ECP) to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in Khyber Pakhtunkhwa.
The five-member bench was reconstituted by Bandial, who took a suo motu action against the delay in elections and initially formed a nine-member bench to deal with the issue. However, two of the nine judges differed with the decision to take suo motu notice, while two other judges recused themselves, prompting the Chief Justice to form a new bench.
Justice Shah and Justice Mandokhail, in their detailed 28-page dissenting note, also rejected the 3-2 judgment in the suo motu case by saying that it was a 4-3 judgment to reject the maintainability of the case and lambasted the Chief Justice’s power to form a bench for important cases.
The coalition government led by Prime Minister Sharif, which is supporting the ECP’s decision to delay the election in the two provinces until October 8, is trying to use the parliament to curtail the powers of the Chief Justice.
The premier also said that the courts were treating Imran Khan favourably and were not ready to hold Mr. Khan accountable.
The development comes as the top court is hearing a case about the decision of the Election Commission of Pakistan to postpone the provincial election till October 8, well beyond the 90 days deadline by the constitution to hold elections after the dissolution of an assembly.