The parliament and judiciary have been locked in a power struggle that has raised questions about the moral authority and legitimacy of the Supreme Court, the parliament’s authority to legislate on the court’s jurisdiction and the need for curtailing the country’s top judge’s absolute and “imperial” powers.

The latest episode in this struggle is the Supreme Court (Practice and Procedure) Bill, 2023, which was passed by the Parliament of Pakistan.

Days after the bill was passed, a petition challenging it was fixed before an eight-member bench of the Supreme Court. The exclusion of seven judges has since led to accusations of bias and a lack of transparency.

Read more: ‘One-man show’: Is Parliament’s move to curtail the CJP’s powers justified?

Meanwhile, the eight-member bench hearing the petition issued an ‘anticipatory injunction’, preventing the law from taking effect until further notice. The move seen as a response to the government’s rejection of the apex court’s verdicts and defiance of its orders, with the Chief Justice of Pakistan (CJP) keen to underline his power and authority.

What is the Supreme Court (Practice and Procedure) Bill, 2023?

The legislation is a significant development in the constitutional and legal framework of the country’s highest court, aimed at regulating the powers of the CJP, who is the head of the judiciary in the country. In essence, it proposes to limit the CJP’s almost absolute administrative powers, which include the power to constitute benches as well as fix and transfer cases.

The bill instead sought to transfer these powers to a three-member committee, comprising the CJP and the two senior-most judges of the SC. Furthermore, the committee would decide whether or not to take up a matter on suo motu, which is currently solely the CJP’s prerogative.

The legislation also includes the right to file an appeal within 30 days of a judgment in the case, besides mandating that any case involving constitutional interpretation will not have a bench of fewer than five judges.

One of the consequences if the law were to come into effect would be that Nawaz Sharif and other parliamentarians, disqualified by the Supreme Court under its original jurisdiction, would get the right to appeal their disqualification within 30 days of the law’s enactment.

Political and legal background of the bill

The demand to regulate the CJP’s powers has been a longstanding one, with the legal fraternity, the representative bodies of the bar councils and judges, as well as political parties calling for the establishment of a proper system of checks and balances.

The CJP, for his part, has traditionally enjoyed immense powers, including the ability to decide which judges hear what cases, the power to constitute benches, and the power to fix the dates of hearings. This has led to accusations of favouritism and arbitrary decision-making. Former CJPs Iftikhar Chaudhry and Saqib Nisar employed these powers to the hilt.

The immediate political and legal struggle over the bill has been intense. In recent months, the formation of benches and fixation of cases has become a particularly contentious issue, with allegations of political interference in the process. The elections to the provincial assemblies of Punjab and KP have also added to the complexity of the situation, with the ruling coalition alleging that the opposition is trying to influence the judiciary to gain an advantage in the elections.

Power to grant anticipatory injunction, stay

The bill has also sparked a constitutional debate over the court’s power to grant an anticipatory injunction and stay against a bill that has yet to become law.

Read more: Top court’s order on a law that has yet to be enacted — a categorical statement? Legal eagles weigh in

The precedents of the Aitzaz Ahsan case (PLD 1989 Supreme Court 61) and the Dr Mobashir Hassan Case (PLD 2010 Supreme Court 265) — the latter delivered by the SC’s full court — are instructive here. While the former held that the court does not have the power to suspend a bill or law, the latter held that the provisions of a law cannot be suspended unless the court is suspending a particular order, judgment, or action.

In the Aitzaz Ahsan Case, a landmark decision was delivered by an 11-member bench of the Supreme Court. The decision held that until a law is conclusively held to be unconstitutional for any reason, it should continue to have its normal operation. This principle of constitutional interpretation is well-settled and has been followed in subsequent cases. The case is also notable for its significance in defining the scope and limits of judicial review in Pakistan.

Another potentially relevant precedent is the Hisba bill case. In 2005, President General Musharraf filed a presidential reference before the Supreme Court in its advisory jurisdiction and sought the court’s opinion regarding the Hisba bill approved by what was then the NWFP assembly, which was at the time dominated by Muttahida Majlis-e-Amal (MMA). The bill called for the establishment of a department [Mohtasib (ombudsman)] to ensure adherence to “Islamic values at public places”.

In this particular case, the nine-member bench held that many of the provisions in the bill violated the Constitution by interfering in the private lives, personal thoughts and individual beliefs of citizens. The court therefore directed the NWFP governor to reject the Hisba bill. Legal experts have tried to distinguish the current case from the Hisba bill by pointing out that the latter was adjudicated under the SC’s advisory jurisdiction, while the current bill has been challenged under its constitutional jurisdiction.

It is also important to note here that the eight-member bench hearing the recent petition cited the Dr Mobashir Hassan case adjudicated by a 17-member bench, while ignoring the 11-member bench ruling on the Aitzaz Ahsan case.

Both precedents were delivered by benches larger than the current eight-member bench and were, therefore, binding.

The court distinguished the Dr Mobashir Hassan case in the following manner: The general principle is that the provisions of a law cannot ordinarily be suspended, and that the court can only suspend a particular order, judgment, or action; however, the circumstances presented in the current matter are considered to be extraordinary in terms of their impact on the independence of the judiciary.

The court, therefore, held that it believed there was a substantial and immediate interference with the functioning of the court, and an anticipatory injunction was an appropriate remedy to prevent an imminent danger that is irreparable.

What is significant is that the court relied on just one word in the entire judgment — ordinarily. In doing so, the court chose to ignore the more relevant precedence of the Aitzaz Ahsan case. Furthermore, no explanation has been provided for ignoring the most relevant precedent. It also does not appear to be a mere oversight.

According to an overwhelming majority of legal experts, the SC’s decision to suspend the bill is a violation of these precedents and absolute judicial overreach into the jurisdiction of the legislature.

Potential conflict of interest of the CJP

One of the key issues in the debate is the perceived conflict of interest of the CJP as well as that of future chief justices, for that matter. The bill seeks to limit the CJP’s powers, which has been a long-standing demand of the legal fraternity.

However, the exclusion of other justices of the Supreme Court from the eight-member bench hearing the petition, besides the CJP’s decision to lead the bench, has raised several eyebrows. In fact, the bar councils have voiced serious concerns over the propriety of the CJP heading the bench that is hearing the constitutional challenge to the bill regarding his own authority.

A complaint of misconduct, filed by Advocate Mian Dawood, before the Supreme Judicial Council (SJC) against CJP Bandial for taking up the matter of the bill has added to the controversy. In his complaint, Advocate Dawood has alleged that the CJP fixed the petition in his self-interest, presided over the bench hearing the matter, and passed an anticipatory order against all constitutional, legal, requirements, practices, and norms.

Additionally, Dawood has accused four future CJPs and three junior judges of being guilty of misconduct for violating the well-established rule against bias and self-interest, and violating the code of conduct to be observed by judges of the Supreme Court of Pakistan and of the High Courts of Pakistan. He has also accused the justices of passing a glaringly illegal, unconstitutional, and mala fide, anticipatory order, or worse, for being incompetent, and part of a partisan power grab.

Parliament versus the divided supreme court

Due to the controversy over the bill, the moral legitimacy of the Supreme Court is also being questioned, with some arguing that its decision to suspend the bill goes beyond its constitutional mandate and encroaches on the parliament’s domain.

The struggle for jurisdiction between the parliament and the judiciary is not a new issue in Pakistan, and the current controversy highlights the delicate balance of power between the two institutions. After the Lawyers’ Movement, the higher judiciary, especially the Supreme Court, has constantly encroached upon the powers of the parliament and the executive.

In 2010, when parliament tried to make modest changes in the procedure for appointment of judges to constitutional courts, the Iftikhar Chaudhry-led SC threatened to strike down the 18th Amendment unless parliament reconsidered the appointment process and restored the CJP’s dominant role in the appointments.

The parliament backed away and passed the 19th Amendment, retaining a very modest role for a bi-partisan parliamentary committee in the appointment process. The SC, however, refused to accept even this modest role and through a judicial decision, made the parliamentary committee redundant.

In Munir Hussain Bhatti’s case, the Supreme Court held that the parliamentary committee cannot set aside the judicial commission’s findings regarding the competence and fitness of its nominees. It can, however, consider the antecedents of a nominee, but is required to record its reasons in cases where it rejects a nomination, and these reasons are subject to judicial review. This gives the CJP-led judicial commission and the judiciary control over appointments to the superior judiciary.

Read more: A judicial meltdown

In the recent case, the PDM-led ruling coalition government immediately denounced the bench formed to hear the SC procedures bill case and urged the CJP to dissolve it. They argued that their demands were necessary to maintain a balance of power and were not intended to be an intervention in the CJP’s powers.

The law minister even alleged that a “selective bench” had been formed in disregard of the rules and expressed concern over the lack of representation from certain provinces. He reiterated that parliament was supreme and would continue to draft legislation. Other coalition leaders also raised objections and warned against attempts to undermine parliament’s authority. They called for a full bench to be formed to benefit from the collective wisdom of the judges and urged the SC to focus on preserving its reputation instead of taking on the characteristics of a political party.

The law minister also rejected the impression that the judiciary’s powers were being abridged under the bill and said that the SC’s rules were framed during a dictator’s tenure, and that this law would remove the impression of an ‘imperial court’ and end the ‘one-man show’ in the apex court.

The passing of a resolution by the lower house of parliament expressing concern over the judiciary’s attempt to interfere in its constitutional jurisdiction and usurp the authority of parliament to legislate has added to the controversy surrounding the bill.

The resolution also condemned the CJP’s act of constituting an eight-member bench “in haste” to take up the bill before the completion of its legislative process and implementation.

This is the third such resolution in as many weeks targeting the judiciary for taking up the issue of elections in Punjab and KP. The resolution also stresses parliament’s supremacy in framing the Constitution and enacting legislation and regrets the non-inclusion of two senior judges from smaller provinces, while demanding the dissolution of the bench formed before the completion of the legislative process.

Legality of parliamentary resolutions

Article 66 of the Constitution enshrines long-standing parliamentary privileges, particularly the freedom of speech of parliamentarians. This means that parliamentarians can speak freely during debates and discussions without any fear of being held liable in any court for what they say or how they vote in the legislature.

Article 68 of the Constitution, however, places a restriction on the discussion in parliament regarding the conduct of any judge of the Supreme Court or of a High Court in the discharge of their duties. This means that members of parliament cannot discuss the conduct of judges while they are performing their official duties — something that the members of parliament appear to have disregarded of late.

Meanwhile, the SC’s decision to suspend the bill is reminiscent of the decision by Chief Justice Sajjad Ali Shah to suspend the 13th Amendment in 1997, which also involved a confrontation among the judiciary, the executive and parliament. That confrontation did not end well for the then-CJP.

The 13th Amendment to the Constitution of Pakistan was passed in 1997 and introduced significant changes to the country’s political system. It removed the power of the President of Pakistan to dissolve the National Assembly, which is the lower house of parliament, and transferred this power to the prime minister.

The amendment also established a caretaker government system to oversee the transition of power between one elected government and the next. The 13th Amendment was also suspended without a sufficient hearing. However, this decision was quickly overturned by another 10-member bench of the apex court.

Subsequently, in the case of Malik Asad Ali (1997), the appointment of Justice Sajjad Ali Shah as CJP was challenged on the grounds that the seniority principle was not followed. The Supreme Court held that the appointment of CJP Shah was invalid, and he was subsequently removed from his position. Justice Ajmal Mian was then appointed the new Chief Justice of Pakistan on the basis of seniority.

Parliament’s counter-attack?

While the apex court appears to be on the charge, the parliament too seems to have decided not to back down. The National Assembly recently passed another bill, titled the Supreme Court Review of Judgments and Orders Bill, 2023, which aims to expand the SC’s review jurisdiction to a broader scope of conducting reviews based on both facts and law. This would mean that the scope of review would be expanded to resemble an appeal.

If the law were to pass, a review petition would be heard by a bench larger than the one that passed the original judgment or order. The bill also has a retrospective effect, allowing for the review of judgments and orders passed before its enactment.

It is suggested that this could potentially be used by the government to file appeals disguised as review petitions, particularly in cases where there is a constitutional stipulation for certain actions to be taken within a specified time period, such as elections.

It could also be employed to file a review against the Supreme Court (Practice and Procedure) Bill 2023. Additionally, it could allow for legal challenges to important orders and judgments, including the life-long disqualification of certain individuals.

It is also noted that dissenting opinions from judges who were previously ignored in constitutional benches may become more prevalent. Some legal experts see this as a “camouflaged legal attack”, allowing the government to file an appeal under the guise of a review.

Where do we go from here?

What is apparent amid all this is that the Supreme Court (Practice and Procedure) Bill, 2023, has become a major point of contention between parliament and the Chief Justice of Pakistan. While the real battle appears to be political in nature, it is unfortunate that it is being played out in judicial chambers.

Despite the contentious background and its timing, there is no denying the fact that the bill is necessary to ensure the fundamental right to justice by providing for meaningful appeal and review of judgments and orders passed by the Supreme Court in its original jurisdiction.

The power struggle between the judiciary and the executive-led legislature is likely to continue, with each side asserting its supremacy. With the powerful praetorian establishment seemingly siding with the executive and parliament, it is difficult to see how a divided supreme court can win this battle, considering it neither has the power of the sword nor the purse, and by now appears to have lost a significant part of its moral authority and credibility.

From here on, it will either lead to the dismissal of the chief executive — a remote likelihood — or taming of the office of the CJP, or worse, his ouster. For the sake of the rule of law, constitutionalism, and democracy, however, the delicate balance of power between the two institutions must be maintained.

To this end, the parliament and the judiciary must work together to resolve these issues without stepping on each other’s toes and causing more damage to the credibility, moral authority and sanctity of both pillars of the state.