Tuesday February 27, 2024

Legislative limitations: Part - I

April 25, 2023

“Wherein independence of judiciary shall be fully secured” – Constitution of Pakistan, 1973 (Preamble). This mantra forms the backbone of our constitution, which has been repeatedly validated by the superior courts and championed by politicos in their hour of need.

The recent ‘Supreme Court (Practice & Procedure) Bill, 2023’ (‘SCPPB 2023’) moved by parliament has led to a constitutional division amongst commentators, with some observers feeling it encroached upon the independence of the judiciary through restricting authority held by the chief justice of Pakistan in exercising discretionary suo-motu powers and forming benches to hear cases. The Bill proposes to shift the power to a committee of the top three judges of the court to decide fixation of Benches and whether a suo-motu matter should be taken up or not.

Article 175 of the constitution establishes the Supreme Court of Pakistan, and Article 184(3) provides the SC with what is colloquially known as suo-motu jurisdiction – to hear matters of fundamental rights and public importance in the Supreme Court’s original jurisdiction. The power of suo motu has been used by the top court in several matters of national importance, such as disqualifications of prime ministers, no-confidence motions against the government and so forth.

The suo-motu jurisdiction is currently procedurally governed under the Supreme Court Rules, 1980 – enacted under powers granted in Article 191 of the constitution which mandates the SC itself to make rules regarding its practice and procedure. Pursuant to Article 191, the SC Rules, 1980 were established giving the CJP complete right to form benches hearing all matters (including suo motu).

These suo-motu powers held by the CJP have been repeatedly acknowledged and upheld by the SC, even as recently as 2021 where a five-member bench of the Supreme Court in SM Case No 4/2021 (Press Association Case) unequivocally held that all suo-motu powers (in deciding the bench and which matters were to be heard) rested exclusively with the CJP, and none other. In fact, several prior SC judgments have even referred to the CJP as the ‘pater familias’ – head of the judiciary, acknowledging these administrative powers held by him.

A five-member SC Bench in the Baz Mohamad Kakar case maintained that judicial review and suo-motu jurisdiction was to be regulated by the SC itself, and the judgement even went further to clarify that the Supreme Court has the power to examine the constitutionality of executive and legislative actions. The same bench also held no person has the right to try and get the CJP to abdicate his responsibilities nor does anyone hold the right to demand a bench of their choosing, as otherwise it would be tantamount to the executive issuing orders for benches of their choice hearing particular matters (perhaps a foresight on the current day legislative glitch). The bench further enunciated that the SC Rules were framed under powers granted vide Article 191 of the constitution and the legislature cannot take them away. In my opinion, the SCPPB 2023, stood void at the outset as it is beyond the legislative competence of parliament, but let’s examine the situation further.

For a layperson to understand, Article 70 of the constitution provides the mechanism for passing a law: A Bill (a proposed law) is introduced and approved through parliament, and then sent to the president for his assent. If the assent is granted, it is promulgated into statute and becomes law. If the Bill is refused, it is referred back to parliament by the president (within 10 days) for reconsideration by parliament who can then resend it back to the president (whether or not they take into account the president’s recommendation) for assent. The president then must grant assent or else the assent will be deemed to be granted after 10 days have elapsed, and the said Bill becomes a statute.

The SCPPB 2023 was returned by the president to parliament, which then resent it to the president for assent. Meanwhile, this matter came before the Supreme Court in suo-motu proceedings; the court passed an anticipatory injunction order dated April 13, 2023 stating whenever the 10 days pass and even if the Bill is deemed to become a statute, it shall not be given any effect (until further conclusion of the case).

A legal argument ensued questioning whether the Supreme Court holds power to grant such an anticipatory injunction before the Bill converts to a statute. Before discussing the proposition, it must be reiterated that the constitution of Pakistan is based on the trichotomy of powers as a fundamental guiding principle. This concept was founded by 18th Century French jurist Montesquieu who spoke of separation of powers: that the executive (government), legislative (parliament) and judicial (courts) branches of government must remain independent of each other and our constitution and SC judgments uphold this principle. Though some experts cite foreign jurisdictions on the matter, I am limiting this article solely to our constitution which is all-encompassing for the present purposes.

A five-member SC Bench in the Wuqla Mahaz case (P 1998 SC 1263) held that the Supreme Court is to decide its own jurisdiction, and that right of speech in parliament is not an absolute right. The bench further held that the SC could strike down any action or order if it was mala fide, coram non judice or without jurisdiction. The SC in a 17-member full bench reiterated these principles in the Mobashar Hasan case (P 2010 SC 265), maintaining there can be no legislation on anything impermissible against the courts and cited that the substance of legislative action must be considered, not the form; and the legislature cannot act to set aside judgments of the court.

The court also held that intervention against the independence of the judiciary would be unconstitutional. The SCPPB 2023 at least prima facie appears to violate the above principles. The Bill is also directly contrary to Article 191 – and the SC Rules, 1980 and parliament are not empowered to legislate on this matter because it would be legislative overreach, as the subject falls within the constitutional domain of the judicial branch.

To be continued

The writer is a practising lawyer at the Supreme Court of Pakistan and has previously served as assistant attorney general for Pakistan.