ISLAMABAD: Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi on Tuesday pleaded that the Supreme Court (Practice & Procedure) Act, 2023 encroaches upon the powers of the apex court to make its rules and regulating its practice and procedure.

“Article 191 of the constitution confers exclusive power to make its rules is not subject to or subservient to any provision of the constitution,” argued the concise statement that the SCBA president filed before the apex court.

Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, an eight-judge Supreme Court bench, which on April 13 suspended the Supreme Court (Practice & Procedure) Act, 2023, will resume hearing on challenges to the law on Thursday.

The concise statement mentioned the principle of trichotomy of powers, was an overarching principle in the constitution, which prevents the legislature from encroaching upon the courts’ jurisdiction.

Eight-member bench to resume hearing of challenges to the suspended law tomorrow

The SC has already enacted rules in relation to its practice and procedure and given that the field is already occupied, the parliament cannot now enact a conflicting piece of legislation, the statement emphasised.

If the framers of the constitution had intended for the SC rules to be ‘subject to the law’ in the sense that they remain in field only so long as Parliament does not legislate in relation to the same, the language employed in Article 154 (5) of the Constitution in relation to the Council of Common Interests, would have also been used in Article 191, the statement said.

Article 175(2) provides that no court will have any jurisdiction unless conferred on it by the constitution or by under any law. In this view of the matter, the relevant constitutional provisions are to be construed in a manner that neither the judiciary nor the legislature transgress its own limit, the statement said, adding it should not be overlooked that constitution enshrined and emphasised the independence of the judiciary and therefore, the relevant provisions are to be construed in a manner which would ensure the independence of the judiciary.

Entry 55 of the federal legislative list of the constitution makes it clear that the parliament can legislate on “enlargements of the jurisdiction of the Supreme Court and the conferring thereon of supplemental powers” only through an “express authorisation by or under the constitution”, which would mean a constitutional amendment, as there is nothing in the constitution that can allow for an interference in the SC jurisdiction.

The statement said Article 199, which confers jurisdiction on the high court, is “subject to the constitution” meaning that the high court jurisdiction may be subject to various provisions of the constitution and therefore any interference in relation to the same would not require a constitutional amendment. Whereas Articles 184-186, which confer jurisdiction on the SC, are not made “subject to the constitution” making it clear that the constitution has no provision that allows for any interference in the SC jurisdiction.

Published in Dawn, May 31st, 2023