The federal coalition government on Saturday filed a plea in the apex court to form a full court bench to hear all the petitions challenging the Supreme Court Practice and Procedure Bill 2023 that aims to curtail the chief justice of Pakistan’s (CJP) powers.

The bill has since become an act of Parliament and three petitions were filed against it under Article 184(3) of the Constitution by Advocate Muhammad Shafay Mu­nir, Raja Amer Khan, Chaudhry Ghulam Hussain and others.

The bill proposes taking away the individual authority of the chief justice to initiate suo motu proceedings and unilaterally form benches and vests them in a panel comprising the CJP and two senior-most SC judges. It also calls for the right to appeal suo motu decisions.

Action on the bill was preemptively frozen by the court even before it became law last month.

The federal government filed an application today, a copy of which is available with Dawn.com, requesting the court that a full court hear the petitions since the matter “raises [a] number of very important constitutional questions, including that of the independence of the judiciary, powers of the parliament to regulate practice and procedure of the honourable Supreme Court”.

The plea made it clear that respondents in the case had full confidence in every SC judge and did not want any particular judge to hear the petition.

“However considering the paramount importance of the constitutional questions involved and the fact that it is a case of first impression, the fairest and most transparent course of proceeding […] would be if it’s heard by all the honourable judges of the Supreme Court,” it added.

The application highlighted that the issue must be resolved by a full court because it concerned all the Supreme Court judges and even the people of the country.

It also cited previous cases concerning the judiciary’s independence, saying that full courts were formed for all of them and the importance of the current case was “equally critical” as it required the determination of the legislature’s power to regulate the practice of and proceed of the state’s judicial organ and a constitutional command to secure the judiciary’s independence.

The petition argued that deviating from the precedent in the cited cases would cause “unnecessary controversy … and will not be conducive” to the court or state’s image.

The petition shed light on how the respondents were fully conscious of their bounden duty to uphold the independence of the judiciary and the rule of law, citing that they have never wavered in the performance of their duty.

“Respondents are very conscious of the doctrine of trichotomy of powers and the independent role of the three pillars of the state as expounded by the honourable Supreme Court,” it said.

The plea said the Supreme Court had always “frowned upon” any encroachment in the domains of the three state pillars, concluding that “the prayer was made in the best interest of justice and fairness”.

The petition argued that the Supreme Court Rules 1980 were framed by a full court and gave the prerogative of bench formation to the chief justice.

It added that since the Supreme Court Practice and Procedure Bill 2023, which was now an act, had supplemented the rules and vested the power of bench formation to senior apex court judges thus it was “most appropriate” that petitions challenging it be heard and decided by a full court.

It further said that securing the public trust was “foremost” for securing the judiciary’s independence and any course which jeopardised it would weaken the whole state.

“Already controversy regarding formation of benches are rampant and could only be put to rest by constitution a full court for hearing the petitions,” the plea said.

Bill becomes law

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, was aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity.

The draft law was initially passed by both houses of Parliament in March 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 on April 10 — albeit with some amendments.

Meanwhile, the top court — while hearing the three petitions challenging the then-bill — in an “anticipatory injunction” on April 13, barred the government from enforcing the draft law, saying the move would “prevent imminent apprehended danger that is irreparable” as soon as it became an act of parliament.

“The moment that the bill receives the assent of the president or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the act that comes into being shall not have, take or be given any effect nor be acted upon in any manner,” said the interim order issued by the eight-member bench.

The ruling coalition government was swift to reject the apex court’s ruling and on April 19 the president again refused to give his assent and sent the draft law back to Parliament.

Despite this, the bill technically became an act of parliament on April 21 under Article 75(2) of the Constitution, and despite the court’s order halting the law’s implementation, the National Assembly Secretariat formally asked the Printing Corporation of Pakistan (PCP) to publish it in the official gazette.

Article 75(2) of the Constitution says that when the president has returned a bill to the parliament, it shall be reconsidered in a joint sitting. If it is again passed, with or without amendment, by the votes of most members of both houses, it is again referred to the president for their assent. If the bill was not signed by the president within 10 days, their assent would have been deemed granted.

According to the legislation, a three-member bench consisting of the CJP and the two senior-most judges of the apex court will decide whether to take up a matter suo motu. Previously, this was solely the prerogative of the chief justice.

The law also states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench, which will be formed by a committee comprising 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 would 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.