On 28 March 2023, the Federal Cabinet approved legislation in the form of a Bill. This Bill was rapidly introduced in the National Assembly and passed the same day. On 30 March 2023, it was passed by the Senate without any amendments. The Bill was then presented to the President for his assent. On or about 8th April 2023, the President returned the Bill to Parliament for reconsideration. According to Article 75 of the Constitution, “If a Bill is presented to the President, he shall, within 10 days of its presentation, either give his assent to it or return it to Parliament. The clause states that in the case of a Bill other than a Money Bill, the President may return it to Parliament with a message requesting that the Bill, or any specified provision thereof, be reconsidered and that any amendment specified in the message be considered”.
On 10 April 2023, Parliament in a joint sitting reconsidered the Bill and passed it, possibly with some amendments. The Bill so passed is now being presented to the President for his assent. Clause (2) of Article 75 of the Constitution further states, “If a Bill is returned to Parliament, it shall be reconsidered in a joint sitting of both the National Assembly and the Senate. If it is passed by the requisite majority (with or without amendments), it shall be deemed for the purposes of the Constitution to have been passed by both Houses and shall be presented to the President, and the President shall give his assent within ten days, failing which such assent shall be deemed to have been given.” Clause (3) of Article 75 of the Constitution stipulates “When the President has assented or is deemed to have assented to a Bill, it shall become law and be called an Act of Majlis-e-Shoora (Parliament)”.
The new legislation brings about significant changes in the way the Supreme Court of the country takes up matters Suo-Motu and hears cases. One of the key changes is that a three-member bench comprising the Chief Justice and two senior-most judges of the apex court will now decide whether to take up a matter Suo-Motu or not. This power was previously solely the prerogative of the Chief Justice. Furthermore, the legislation provides that every cause, matter, or appeal before the apex court will be heard and disposed of by a bench, constituted by a committee made up of the Chief Justice and the two senior-most judges. This ensures a more balanced approach to the decision-making process.
In addition, the legislation provides that any case involving constitutional interpretation will not have a bench of fewer than five judges. This ensures that important constitutional matters are heard by a larger bench, which is likely to lead to more informed and balanced decisions being made.
The legislation also introduces the right to file an appeal within 30 days of the judgment in a Suo- Motu case. This will enable individuals who have been affected by the Supreme Court’s exercise of Suo-Motu powers to challenge the decision and have their case heard in a formal manner.
The new legislation also includes a provision that will allow former Prime Minister Nawaz Sharif and other ex-parliamentarians who have been disqualified by the Supreme Court under Suo-Motu powers to appeal their disqualification within 30 days of the law’s enactment. This provision has been a point of contention in parliament, with Senator Mushtaq proposing an ultimately rejected amendment. The proposed amendment would have omitted clause 5 sub-clause 2 and not given retrospective effect to the bill, if it is given such effect then it will allows specified persons to benefit from this clause.
Three petitions have been filed before the apex court under Article 184(3) of the Constitution, challenging the constitutionality of the Supreme Court (Practice and Procedure) Bill, 2023. The petitions have been filed by Raja Amer Khan and another (in Const. P. 6 of 2023), Chaudhry Ghulam Hussain and another (in Const. P. 7 of 2023), and Muhammad Shafay Munir, Advocate High Court, Lahore (in Const. P. 8 of 2023), against the Federation of Pakistan through the Secretary Law and Justice Division, Ministry of Law and Justice Islamabad and others. The Bill, which is on its way to becoming an Act of Parliament, has been challenged on various grounds. On April 13, 2023, the apex court heard the case regarding the constitutionality of the Bill. The arguments presented and the court’s decision are not yet known.
In three petitions challenging the constitutionality of the Supreme Court (Practice and Procedure) Bill 2023, learned counsel argued that the independence of the judiciary, particularly the position of the Chief Justice of Pakistan, is a fundamental right deeply embedded in the Constitution. The Bill had passed beyond the legislative stage and was bound to become an Act, making the petitions maintainable. Counsel argued that the Bill’s passage was defective at both the executive and legislative stages and constituted a fraud on the Constitution. The counsel argued that clauses 2 to 4 of the Bill were unconstitutional as they aimed to transfer the Chief Justice’s powers to a committee. The Court’s rule-making power had already been exercised and could not be replaced by legislation. The Bill was considered an intrusion into a sphere exclusive to the Court, and hence ultra vires the Constitution. The appellate jurisdiction conferred on the Court was beyond Parliament’s competence. The counsel requested interim relief to suspend the Bill or prevent its assent and notification. As the Bill has reached the stage where it reflects the ensuing Act of Parliament, and the passage from Bill to Act is a matter of time as per clauses (2) and (3) of Article 75. Neither the President nor Parliament can change its content or divert its course.
The Bill has not become law yet, but it raises serious constitutional concerns related to the independence of the judiciary. The Bill seeks to regulate the practice and procedure of the Supreme Court, which is an area that the Court can regulate itself under Article 191. The Bill appears to subordinate the rules made by the Court to “law,” which is a serious encroachment upon the independence of the judiciary. The Bill gives overriding effect to its provisions over any rules and judgments of any court, which is also a serious intrusion into the independence of the judiciary.
The counsel argues that the proposed legislation in Clause 2-5 of the Bill undermines the independence of the judiciary and is therefore unconstitutional. The power to regulate can lead to the destruction of the independence of the judiciary, and any interference with fundamental rights should be kept beyond legislative and executive incursion. The counsel also questions the constitutionality of conferring a new appellate jurisdiction on the Court, as it may be beyond the competence conferred by Article 191 and entry No. 55 of the Federal Legislative List.
The Supreme Court has issued an interim order to prevent the proposed bill on the judiciary from taking effect, citing interference with the independence of the judiciary. The judgment will be significant for reaffirming the principle of judicial independence, which is a cornerstone of the rule of law and democratic governance. Notices have been issued to various parties and the case will come up on 02.05.2023 at 11:30 a.m.
It remains to be seen what the true intentions of the legislature were in passing this bill. However, the bill has caused a stir in the country and created tensions between lawyers, judges, and parliamentarians. Only time will tell if the bill was passed to benefit a specific group or to limit the power of the chief justice and be used selectively or not.