• Petitioners urge court to declare bill unconstitutional, strike it down
• Pakistan Bar Council announces countrywide strike, protest against ‘controversial bench’

ISLAMABAD: An eight-judge Supreme Court bench, headed by the chief justice, will take up a set of three petitions challenging a pending legislation meant to clip CJP powers, on Thursday.

However, the legal fraternity has opposed the apex court’s move to take up the petitions against an as yet proposed law, and the Pakistan Bar Council (PBC) has called on lawyers across the country to boycott courts on Thursday (today) to protest the formation of a “one-sided and controversial bench” to take up the issue “prematurely”.

In addition to CJP, the bench comprises Justice Ijaz-ul-Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha A. Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

The bench will take up the petitions challenging the SC (Practice & Procedure) Bill, 2023, which were separately moved by Mohammad Shafay Munir on Tuesday, and Raja Amer Khan and Chaudhry Ghulam Hussain on Wednesday.

President Arif Alvi has already returned the bill once after it was passed by both houses of parliament, and it was again passed by a joint session of parliament.

The latest petitions argue that the concept, preparation, endorsement and passing of the Supreme Court (Practice and Procedure) Bill, 2023 is an act tainted with mala fide. Therefore, they urge the SC to strike it down after declaring it to be without lawful authority and of no legal effect.

The federal government, law secretary as well as principal secretaries to the premier and president have been named as respondents in the case.

Advocate Imtiaz Rashid Siddiqui will represent petitioner Khan, Advocate Mohammad Azhar Siddique will appear on behalf of petitioner Hussain whereas Advocate Mohammad Hussain will represent petitioner Munir.

The petitioners requested the SC to suspend the bill during the pendency of the petition, with a directive for President Dr Arif Alvi not to assent bill so that it could not become an act of parliament. They contended that the federal government cannot frame any law that seeks to interfere or regulate with the functioning of the apex court or the powers exercised by it or its judges, including the CJP, under the Constitution.

The impugned bill is ultra vires and an unconstitutional measure, in sheer violation to the constitutional mandate, the petitions said, adding the federal government has committed a blatant violation of the Constitution.

According to the petitions, the Supreme Court and its corpus as defined in Article 176 consists of CJP and so many other judges as may be determined by the parliament or, until so determined, as may be fixed by the president. It is clear that the CJP is the centrifugal force and the entire fabric of the apex court is webbed around it. The independence of the judiciary and of each of the judges and its CJP is declared as an aim enunciated in the preamble to the Constitution; the same is a part of the objective resolution and thus a substantive part of the constitution, the petitions emphasized.

The SC, led by CJP with its judges, must be independent from all executive or legislative transgress so as to perform their constitutional obligations in providing justice to the people of Pakistan. The same cannot be allowed to be compromised with regards to the function of the judicial organ of the state, the judges or CJP or their independence as provided in the constitution.

It is unimaginable that the office of CJP with respect to constitutional powers, inter alia, of suo motu could be allowed to be regulated by the parliament, according to the petitions.

The petitioners further argued the parliament could not make a law that was inconsistent with the referred provisions of the Constitution. They contended that if any appeal could be allowed by a legislative enactment then the same could only be available through an amendment to the Constitution or by the rules that too in cases where adverse determination of rights and obligations of a person have taken place but not otherwise.

PBC protest call

In a statement issued on Wednesday night, the PBC took issue with the fact that challenges to the SC (Practice & Procedure) Bill were taken up in haste and assailed the formation of “a one-sided and controversial bench” to take up the matter.

Lawyer leaders termed the step an attempt to divide the higest court in the land and agreed that never in history had a law enacted by parliament been prevented from being implemented.

They said that the legislation conforms to the demands of bar councils and associations across the country, and any attempts to prevent its passage would be opposed.

Announcing a complete boycott of the courts to protest this development, the PBC statement said that its representatives from across the country would meet on April 17 to consider the issue.

Published in Dawn, April 13th, 2023