Bill clipping CJP powers: Lawyers warn of nationwide protest if SC stay order not vacated

QUETTA: Representatives of Bar councils from across the country on Saturday, expressing their support for the Constitution, warned that if the Supreme Court does not vacate its stay order by May 2 (Tuesday) against the Supreme Court (Practice and Procedure) Act 2023, legislation curtailing the powers of the Chief Justice of Pakistan, they will start a countrywide protest campaign.

A lawyers' convention was held here at the Balochistan High Court under the aegis of the Balochistan Bar Council (BBC) and Pakistan Bar Council (PBC).

The convention was attended by vice-chairmen, presidents and representatives of all the provincial bar councils, high court bar associations and district bar associations.

Addressing the convention, Barrister Salahuddin objected to why the chief justice of Pakistan always sends sensitive cases to specific judges. He said the current crisis had engulfed the whole country and the judicial crisis was even greater than the issue of elections.

Barrister Salahuddin said that given the current situation, the CJP should form a larger bench. There must be some reason that the top judge did not form a larger bench, he wondered.

Imam Rizvi, the Advocate, said the Supreme Court calls upon everyone to create unity, while it does not create unity in itself. He said that it was beyond him why the chief justice did not form a larger bench to hear the polls case. If the larger bench was formed, there would have been no problem, he added.

IHCBA Vice Chairman Adil Aziz observed the current government and the Supreme Court wanted to bequeath to us such judiciary in which no one will repose trust. He exhorted to revive public and lawyers’ trust in the apex court.

Aziz said if someone does not want to bring his case in front of a judge, then why on earth, the judge must hear his case. He said that they are with lawyers community and lawyers of Islamabad, Haroon Rashid and others fully support the decisions of their leadership.

SHCBA Vice Chairman Arif Abbasi also endorsed Aziz’s point of view, saying if a person does not want a judge to hear his case, the judge should recuse himself from hearing. He expressed the same views that the CJP should have formed a larger bench for the polls case. He said that 73 percent of political cases were being sent to a specific bench.

Balochistan Bar Council’s Saleem Lashari, Advocate, was of the view that the current crisis emerged out of the Supreme Court ruling. Had the apex court not trampled the Constitution, the crisis would not have emerged. The chief justice should have kept himself aloof from this matter, he said.

Senator Kamran Murtaza said that nobody acts upon the Constitution of Pakistan. He said that parliament had failed to solve the country’s problems. He regretted that nowhere in the world judges of Supreme Court have been divided except in Pakistan.

A resolution was also adopted at the convention. The text of the resolution is as under: “The lawyers of Pakistan have always supported the supremacy of the Constitution of Pakistan which provides for the independence of the judiciary and clearly states that the power vested in the people of Pakistan is exercised through their elected representatives in the Parliament.

Thus, all institutions of the state must respect and honor others and their respective domains.

“The Bar Councils and Bar Associations have been demanding for nearly a decade that there is an urgent need to regulate the Chief Justice’s absolute discretion in constituting Benches, conciliation of cases, initiation suo motu (and disposal of appeals against judgments) as vesting all these powers in the hands of one person invariably leads to abuse and arbitrariness and has given rise to current allegations that some judges of the court are pursuing a political agenda.

“As such, this Convention welcomed the passage of the Supreme Court (Practice and Procedure) Act 2023 as a very wholesome and constitutional piece of legislation, which shall vastly improve the administration of justice and enhance the dignity, prestige and reputation for the impartiality of the Supreme Court and making it more independent (by reducing individual arbitrariness) and the Convention commends the Parliament of Pakistan for the same.

“On the other hand, this Convention rejects the totally unprecedented interim order passed by the 8-member Bench of the Supreme Court seeking to stay the said Act from coming into force as being a clear encroachment on the constitutional powers of the Parliament to legislate as well as being opposed to earlier judgments of the larger benches of the Supreme Court. All judges of the apex Court should think of the interests of the entire institution as a whole (which includes and means all judges) and not insist on the perpetuation of a one-man show under the pretense of protecting judicial independence.

“This Convention considers that the current division in the Supreme Court, which is contributing to the ongoing constitutional crisis in the country as a whole and are promoting instability in the nation are a direct result of the refusal to constitute full courts in highly controversial political and constitutional cases and the refusal to abide by any structure or guidelines in the formation benches and fixation of cases.

“This Convention calls upon the Chief Justice and all the judges of the apex Court to heal these divisions and rise above differences and come together for the sake of the institution and the nation.

“Similarly, this Convention calls for the amendment of the Rules of the Judicial Commission [‘JC’] Rules, which are presently in violation of the Constitution itself – insofar as they require that nominees for judicial appointments to higher courts can only be initiated by the Chief Justice concerned.

“The present (unconstitutional) rules allow the Chief Justice to overrule the will of even a majority of JC members and to perpetuate the rule of pick and choose by simply refusing to nominate a candidate for consideration.

“Likewise, this Convention condemns the continued failure to frame rules and regulations, and transparent and objective criteria for the appointment of judges and demands that, in the meantime, the principle of seniority be strictly adhered to because junior judges, it is customary to promote in the Supreme Court. The basis of personal likes and dislikes is one of the main reasons for the formation of distinct camps and lobbies in the Supreme Court and High Courts.

“It is further urged that all judges of the Supreme Court must regard to the doctrine of political thicket doctrine and while courts cannot avoid deciding constitutional or legal issues just because they involve politicians, nonetheless, the Court should be careful to avoid the impression that it is itself rushing into a dispute in order to impose or promote a particular agenda or policy.

“This Convention also demands that vacancies in the apex court be urgently filled (and representation from the smaller provinces and, in particular, Khyber Pakhtunkhwa and Sindh, be duly secured) and that judicial vacancies in all high courts be urgently filled.

“This convention condemns the malicious allegations and campaigns being carried on social media against judges as well as illegal wiretapping of judges and their families, and seeks proper inquiry, proceedings and legislation in respect of the same so that the same is never repeated.”