The bill aimed at curtailing the powers of the chief justice of Pakistan (CJP) may have sailed through the National Assembly, but it has generated a new controversy as timing of this legislation is being called into question; despite the fact that such reforms in the Supreme Court’s rules have been a dream of nearly all mainstream political parties in the country.

Not only the parties in the ruling alliance such as the PPP and PML-N, but even the PTI had plans to undertake comprehensive judicial reforms to address key issues, such as the appointment of judges, powers of suo motu, formation of benches. However, they were either reluctant or unable to do so in the past, when they held power.

Now, all eyes are on the Supreme Court, waiting to see how it will take the new legislation pertaining to its own domain — will it be acceptable to the court or will it adopt a more or less similar course of action through subordinate rules to put its own house in order.

The legal fraternity, however, seems divided on the proposed legislation.

Under the bill, the CJP has been deprived of his power to take suo motu action in an individual capacity, as well as his discretion over the formation of benches. The bill has proposed a committee consisting of three senior judges, including the CJP, to decide both matters.

One of the most significant aspects of the bill is that it has given, for the first time, a right of appeal to parties involved in suo motu cases.

But while the bill tabled by Minister for Law and Justice Azam Nazeer Tarar was welcomed by the ruling alliance, it was strongly rejected by the main opposition PTI, mainly because of its timing.

PPP Chairman Bilawal Bhutto-Zardari, speaking on the floor of the National Assembly on Wednesday, said that clipping the CJP’s powers on suo motu was a part of the Charter of Democracy, inked by the PPP and the PML-N in 2006, in addition to being suggested in 18th amendment.

Every party’s dream

Another PPP leader, Farhatullah Babar, told Dawn that although both parties had agreed upon judicial reforms in the CoD, at that time PML-N supremo Nawaz Sharif was reluctant to implement them as he was of the view that it could be considered later in parliament.

He said the PPP had demanded more, saying that there must a constitutional court in the SC which would only deal with cases of a constitutional nature.

Referring to Article 191 of the Constitution, Mr Babar said if the apex court did not make the much needed changes, the government could make the laws on its own.

Also speaking on the floor of the house on Wednesday, Defence Minister Khawaja Asif said that during the movement of the “restoration of judiciary” — when the PPP was in power — his party wanted to table a bill regarding judicial reforms, but the judiciary at that time was not ready for it.

PTI leader Fawad Chaudhry said that transparency in appointment of judges, use of suo motu powers and formation of benches was also addressed in his party’s proposed judicial reforms. “The main objection [we have now] is that the timing of the legislation only suits the rulers and does not serve the purpose of reforms,” he added.

“The present National Assembly, with an opposition leader like Raja Riaz, is illegitimate and thus has no moral authority to pass such legislation. The judicial reforms we have proposed should be discussed in the next parliament,” he added.

Mr Chaudhry said the right to appeal provided in the law would only benefit Nawaz Sharif — who was disqualified in the Panama Papers case, initiated under Article 184(3) of the Constitution.

Under normal circumstances, suo motu jurisdiction is invoked by the CJP alone and not by any other judge. However, the stance of some apex court judges including Justice Qazi Faez Isa, Justice Yahya Afridi, Justice Syed Mansoor Ali Shah and Justice Athar Minallah remained different, as they think that it should be a collective decision.

No need for an amendment?

Sources in the judicial bureaucracy said there was no need to amend the Constitution through a two-thirds majority, as the current legislation was aimed at amending the rules of the apex court and not Article 184(3) of the Constitution, from which the court derives its power of suo motu.

The rules are subservient to the Constitution; the government approves the rules of procedures of constitutional bodies and it is settled law that the authority that passed an order can undo it. The Supreme Court in a number of judgements has endorsed this dictum, sources said.

They said that judicial scrutiny of the law was always a possibility and the Supreme Court or even the high courts of the country had previously set aside a number of acts of parliament.

For example, the Islamabad High Court (IHC) partially struck down Section 20 of Prevention of Electronic Crimes Act (Peca), and last year it also set aside a presidential ordinance on local governments.

The apex court had also entertained petitions against the 18th Amendment when parliament changed Article 175 of the Constitution that deals with the appointment of judges in the superior courts and gave equal share to the Parliament in judicial appointments.

The government at the time, in order to save the legislation, introduced the 19th Amendment.

But former IHCBA president Shoaib Shaheen, who petitioned the Supreme Court to hold elections in Punjab and Khyber Pakhtunkhwa — a petition that was later merged into the suo motu proceedings — thinks otherwise.

Granting the right to appeal and streamlining suo motu proceedings would require a constitutional amendment, he said, adding that the government had introduced the “so-called reforms with mala fide intentions”.

Giving retrospective effect to the legislation shows that it has been designed to benefit certain politicians, he said, adding that these grounds were sufficient for the apex court of taking cognizance of the matter and strike it down, as was done with the Hasba bill in the past.

View of the judicial community

However, the Pakistan Bar Council (PBC), the apex legal regulatory body in the country, has an altogether different stance.

PBC Vice Chairman Haroon Rashid told Dawn that lawyers’ bodies from across the country were demanding streamlining of the discretionary powers of the CJP.

He said that while the Constitution was silent on this matter (Article 184 (3) vests the powers in the Supreme Court), the chief justice of Pakistan traditionally assumed this power, without proper regulations.

It is worth noting that former chief justice of Pakistan Asif Saeed Khan Khosa, in his full court reference on December 20, 2019, had said that “a working paper containing some proposed amendments to the Supreme Court Rules, 1980 so as to regulate suo motu exercise of this Court’s jurisdiction under Article 184(3) of the Constitution and to provide for an Intra-Court Appeal in that respect has been presented before the Full Court and the same is under active consideration.”

However, the full court of the apex court has yet to adopt these amendments.

According to Mr Rashid, the court can only set aside any legislation if it is deemed ultra vires to the Constitution or contradictory to the law.

In his opinion, the proposed legislation appears to be legal and in accordance with constitutional provisions.

Former Islamabad High Court Bar Association president Raja Inam Ameen Minhas also said that the act did not curtail any judicial power of the CJP, rather it has broadened the scope of suo motu proceedings.

He said the apex court was being criticised over excessive exercise of its suo motu jurisdiction as in the past, successive CJPs took notices on issues such as posting/transfers, sugar prices, construction and other peripheral issues.

He noted that certain segments of society, including the lawyers themselves, were not happy with the excessive suo motu notices, but now a voice for introspection was coming from within the Supreme Court, he added.

Mr Minhas was of the view that in case any petitioner challenged the law, the apex court could take up the petition in accordance with the new legislation.

Published in Dawn, March 30th, 2023