Tuesday February 27, 2024

Legislative limitations: Part – II

April 26, 2023

Another concern regarding SCPPB 2023 is that the Bill provides a retroactive approach enabling an appeal against any persons aggrieved by a suo-motu matter, even prior to the enactment of the said Bill / Act coming into effect.

This means that every single suo-motu case in the past can now be appealed, regardless of the nature / judgment etc. Similar action was already condemned by a full-member bench in the Mubahsar Hasan case (supra) where the Supreme Court specifically stated the legislature cannot enact a statute against the conviction and disqualification of a holder of public office, which SCPPB 2023 is now attempting to potentially do. In law, that which cannot be done directly, cannot be done indirectly.

In addition to encroaching upon the powers of the judicial branch, SCPPB 2023 is also contrary to Article 8(2) of the constitution, a safeguard that says the state shall not make any law taking away or abridging rights, which is what the Bill is attempting to do.

It needs to be remembered that the suo-motu jurisdiction is a constitutional power granted to the Supreme Court under Article 184(3), and any law / bill attempting to alter it would be void on two main principles: i) the legislature does not hold jurisdiction (without first amending the constitution itself); and ii) the SC itself holds power to decide its jurisdiction.

To restrain the Bill, the Supreme Court is further empowered under Article 187 of the constitution which provides them the power to issue any direction or order to do justice in any matter pending before it. Should the order dated April 13, 2023 not have been passed and enforcement of the Bill not restrained, it would have led to oddities creating perhaps irreparable harm to the country and constitution.

For example, if the Bill was enacted into law, the legislators at such point would almost certainly refuse to accept a challenge to the vires of the SCPPB 2023 by any bench constituted by the CJP under the current existing rules. They would have insisted the mechanism in the SCPPB be followed. If this notion was rejected by the judiciary on the grounds the SCPPB was under challenge and appeared unconstitutional, there may become a chaotic stalemate between the judicial and legislative branches, with the legislators unwilling to accept any other outcome from the court. This potential crisis has (at least for now) been averted.

Looking at the doctrine of separation of powers along with the mentioned precedents of the Supreme Court and constitution, parliament can only legislate on subject matters under which it is empowered vide the fourth legislative list of the constitution, which does not include power to amend suo-motu jurisdiction and governance held by the Supreme Court.

The intent of the executive and legislature must also be kept in mind. Their sudden interest in powers pertaining to the jurisdiction and formation of benches of the Supreme Court only emerged when they appeared unhappy with a potentially anticipated decision of the court. Were these not the same persons who happily accepted previous decisions of a CJP-constituted (non-full) bench(es) in suo-motu matters – such as the decision against the NA speaker from holding a no-confidence vote in April 2022 of from disqualifying a former prime minister in 2012 or from suspending a proclamation of emergency on November 3, 2007 to name a few?

During their previous tenures over the last 35 years these parliamentarians oversaw several constitutional amendments. Why did they never think to raise this issue at such a time also through a constitutional amendment? Actions are based on intentions, and I leave it to the reader to draw their own conclusions as to why parliamentary interference in Supreme Court jurisdiction has arisen at this juncture.

I appreciate a counter-argument taken by some, particularly referring to the Aitzaz Ahsan case (1988) which held a statute must be considered valid unless a decision to the contrary is passed; or perhaps the less quoted but more relevant case of Navid Malik (1998) in which a five-member bench held a writ cannot be issued against a Bill or restraining the president or parliament from passing a Bill.

However, a distinction could be made as in the latter case an injunction was sought restraining the president from issuing assent to the Bill (with an observation the president could return the Bill to parliament), whereas in the instant matter the SCPP Bill was already returned. In the former case, the matter upheld an existing statute, whereas the instant Bill has not yet evolved into law. More recent principles enunciated in SC judgments (cited above) would also support the stance that the Supreme Court holds the requisite power to pass appropriate orders in given circumstances.

The legislators must remember they are elected creatures created by the constitution which provides both their powers and limitations, neither of which can be curtailed nor exceeded. Parliament seems to be playing a dangerous game, whose ill effects will see long-term repercussions. The government/parliamentarians like all others are duty bound to obey court orders and this unconstitutional defiance needs to be immediately halted by keeping intact the separation of the three separate branches prescribed under the constitution. These safeguards protect an envisaged democratic state of the people and prevent personal fiefdoms from rising.

While currently the Supreme Court itself governs and regulates their procedure which they collectively may choose to alter, it certainly appears beyond the legislative competence of the legislators.


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