Checks and balances: NA passes bill to clip CJP’s suo motu powers

• House is making entire process transparent, Khawaja Asif says.
• Law minister says legislation will bring an “end to one-man show”.
• The bill will now be presented in the Senate tomorrow.

ISLAMABAD: In a bid to bolster checks and balances in the higher judiciary, the National Assembly passed the Supreme Court (Practice and Procedure) Bill, 2023, tabled to limit Pakistan's top judge's discretionary powers to take suo motu notice.

The bill was passed hours after National Assembly Standing Committee on Law and Justice gave its consent. 

The bill was moved by the government after two Supreme Court judges — Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail — raised questions over the powers of the chief justice of Pakistan (CJP), saying the apex court “cannot be dependent on the solitary decision of one man, the Chief Justice”.

The debate was held in the NA after the sub-committee passed it by including some amendments, which include:

• Right to appeal against the suo motu verdicts taken up to 30 days before the passing of the Lawyers’ Protection Act
• Any case that involves interpreting the Constitution will not have a bench with fewer than five judges

Following the nod from the lower house, the bill will now be presented in the Senate on Thursday (tomorrow).

'Parliament using constitutional right to legislate'

Sharing his take on the bill, Defence Minister Khawaja Asif said that the power of one person in the supreme court is being divided among three members.

“An attempt was being made to give an impression that [we] are reducing or snatching away the Supreme Court’s powers,” he said, clarifying that the house is making the entire process transparent.

The minister added that the Parliament is supreme and parliamentarians are the creators of the Constitution using their constitutional right to legislate.

“We are definitely not taking away the power of the Supreme Court, but the house is using its right. We are using our right to legislate,” the politician, who is also a member of the Pakistan Muslim League-Nawaz (PML-N), said.

He added that the legislation is being enacted in two days and all essentials have been completed.

Asif maintained that this law should have been passed long ago, recalling that an attempt was made to introduce this legislation 15 years ago. “The bar was in favour at that time, while the bench resisted and we did not succeed.”

The minister said the parliament is also empowering two judges and that it is giving the right to appeal as well.

‘Judiciary does not have right to legislate’

The PML-N stalwart also suggested revisiting Article 209 of the Constitution which pertains to the Supreme Judicial Council.

The defence minister questioned the judiciary’s decision to disqualify the country’s two prime ministers. “We are taught about democracy and the Constitution, so the structure of this [Supreme Court] institution should also be democratised.”

He added that the parliament should not be apologetic about exercising its right to legislate, and maintained that lawmakers should exhibit the right they possess through the constitution and law.

Asif said that the judiciary’s decisions can become part of the legislation, but it must accept by the parliament.

“They have the right to scrutinise the law we make, but not the right to legislate,” the minister said, highlighting how the judiciary is scrutinising actions of the parliament.

“Once again the legislature is before the court for scrutiny,” he remarked, adding that no institution of the power structure has people’s mandate except for the parliament.

‘Law has neither reduced nor increased SC’s power’

During the debate, Law Minister Azam Nazeer Tarar said that the legislation will bring an “end to the one-man show”.

Commenting on the agenda of introducing the bill, which received several amendments, he added that legislation should be done for public benefit.

“Institutions are strengthened by systems, not individuals,” the minister, who represents the PML-N in the parliament, said.

He asserted that the house has not given the Supreme Court authority of making benches for the prime minister or interior minister.

“This law has neither reduced nor increased the Supreme Court’s power. It will further improve the court’s performance,” he said.

Tarar maintained that the parliament will fulfil its constitutional responsibility to remove ambiguity.

‘Democracy in SC being restored’

Amid debate around the bill, Foreign Minister Bilawal Bhutto-Zardari said there was a delay in introducing this law; however, it will strengthen the judiciary.

He added that the parliament is going to dismantle the tradition of laws influenced by the will of the chief justice.

“Democracy in the Supreme Court is being restored through this law,” the foreign minister said.

He mentioned that the former chief justice of Pakistan Iftikhar Chaudhry established a dictatorship in the Supreme Court. “Former chief justice Iftikhar Chaudhry was also a part of the hybrid regime,” the foreign minister added.

Bilawal complained that a prime minister, in the past, has sometimes been ousted by a chief justice and other times by a dictator.

'Bill is in legal interest'

Earlier today, during the standing committee meeting, Tarar said that the bill aims to have transparent proceedings in the top court. "This bill was an old demand of the Bar Council which said that indiscriminate use of 184(3) should be stopped," he added.

Tarar said that the bill includes the right to appeal, adding that it was time for the Parliament to legislate on it now.

"After Iftikhar Chaudhry, three other judges avoided taking the suo motu notice," said the law minister, adding that former CJP Saqib Nisar used the suo motu notice without any hesitation.

The minister said that voices were raised against the "one-man show" and that recently, a dissenting note of the two judges of the Supreme Court had also come to the fore. 

"Demands were made that Parliament should introduce a law on this," he said. He added that the Bar raised its voice on the freedom of court and that two groups praised the bill. 

Tarar said that the committee proposed in the bill would regulate the matter, adding that every case and appeal before the Supreme Court would be heard and wrapped up by the bench formed by the committee. 

The committee will comprise the CJP and two senior judges, said the PML-N leader. 

Tarar said that the bill is in the legal interest and added that it is a constitutional freedom for a person to change their lawyer. "The right to appeal the pending cases will also be amended in the bill," he stated. 

PML-N leader Mohsin Shahnawaz Ranjha said that Constitution and legislation are Parliament's job while its interpretation is the judiciary's job. 

"Let us do our job and let them do theirs," he added. 

Moreover, Muttahida Majlis-e-Amal Pakistan's (MMAP) Alia Kamran said that this is the right time to bring the bill. 

The bill

The bill includes shifting the powers of taking suo motu notice from the chief justice to a three-member committee comprising senior judges.

Moreover, the bill also includes a clause regarding the right of challenging the decision which could be filed within 30 days and will then be fixed for a hearing in two weeks.

According to the bill — a copy of which was seen by Geo News — every clause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the committee comprising the CJP and two senior judges, in order of seniority.

The bill also mentioned that the decision of the committee shall be by the majority. However, the two SC judges in their detailed notes had juxtaposed majority rule with “dictatorship”.

They said: “Taking all decisions only by majority rule is no less dictatorship, and the absolutist approach to controversial issues is the hallmark of extremists.”

It was also mentioned in the bill that any matter invoking the exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be placed before the committee constituted under section 2 for examination and if the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court which may also include the members of the committee, for adjudication of the matter.

Meanwhile, in matters where interpretation of the constitutional provision is involved, the committee shall constitute a bench comprising not less than five judges of the apex court.

The bill also grants the party the to appoint counsel of its choice for filing a review application under Article 188 of the Constitution. It should be noted that the counsel, for this purpose, shall mean an advocate of the Supreme Court.

“An application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within fourteen days from the date of its filing,” the bill read.