An eight-member larger bench of the Supreme Court (SC) will resume hearing petitions challenging a bill seeking to curtail the powers of the chief justice of Pakistan (CJP) on May 2 (Tuesday) at 12:30pm.

According to the roster issued on Saturday, the eight-member bench will comprise CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyad Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

The three petitions were filed under Article 184(3) of the Constitution by Advocate Muhammad Shafay Mu­nir, Raja Amer Khan, Chaudhry Ghulam Hussain and others.

Article 184(3) of the Constitution sets out the SC’s original jurisdiction, and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.

The bill, titled the Supreme Court (Practice and Procedure) Bill 2023, is aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity.

It was initially passed by both houses of parliament and sent to the president for his assent. However, the president had sent it back, saying that the proposed law travelled “beyond the competence of parliament”. The bill was subsequently adopted by a joint session of parliament — albeit with some amendments.

However, while hearing the set of three petitions challenging the bill, the eight-member apex court bench on April 13 ruled that after the bill received either the president’s assent or it was deemed to have been given, the act that “comes into being shall not have, take or be given any effect nor be acted upon in any manner” — halting the law’s implementation when the bill came into effect.

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The ruling coalition government was swift to reject the apex court’s ruling. President Dr Arif Alvi again refused to give his assent to the bill on April 19 and sent it back to parliament, following which it technically became an act of parliament on April 21.

The petitions

The three petitions argued 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 secretaries as well as principal secretaries to the premier and president have been named as respondents in the case.

The petitioners requested the SC to suspend the bill during the pendency of the petition, with a directive for President Alvi not to assent to the 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 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 of 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 consist 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 of 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.

The bill

The bill states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP.

The proposed law also states that every cause, matter, or appeal before the apex court would be heard and disposed of by a bench, constituted by a committee made up of the chief justice and the two senior-most judges.

The legislation also includes the right to file an appeal within 30 days of the judgement in a suo motu case and that any case involving constitutional interpretation will not have a bench of fewer than five judges.

The bill seeks to allow former prime minister Nawaz Sharif and other parliamentarians disqualified by the Supreme Court under suo motu powers (such as Jahangir Tareen) to appeal their disqualification within 30 days of the law’s enactment.