Ruling alliance rejects 8-member ‘controversial’ bench constituted to hear pleas on SC bill

• "No compromise will be made on authority of parliament," joint statement reads.
• "This bench itself is a testament to the division of the SC," coalition partners add.
• Law minister says situation is “alarming” as petitions are being heard by "selective bench".

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ISLAMABAD: The ruling alliance on Thursday rejected the eight-member bench constituted to hear petitions challenging the Supreme Court (Practice and Procedure) Bill 2023, deepening the rifts between the coalition government and the superior judiciary.

With only a few hours left for the proceedings to begin, the coalition government released a statement rejecting the bench and terming the eight-member bench "controversial".

The coalition partners — according to the statement — vowed to resist attempts to take away parliament's authority and to interfere in its constitutional scope.

Earlier this week, the bill was passed by a joint sitting of parliament after President Dr Arif Alvi returned it. Subsequently, four separate petitions were filed by Raja Amer Khan, Chaudhry Ghulam Hussain, Mohammad Shafay Munir, and Khwaja Tariq Rahim among others, under Article 184(3) of the Constitution, asking the top court to set aside the bill.

Following the development, an eight-member bench was constituted to hear petitions arguing that the “concept, preparation, endorsement and passing of the Supreme Court (Practice and Procedure) Bill, 2023 is an act tainted with mala fide”.

The bench — which will begin hearing at 11:30am — will be headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprises Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

Terming the development “unprecedented” as the pleas were admitted even before the completion of the legislative process.

They further added that this move was equivalent to sabotaging the credibility of the country’s highest court, making the constitutional process of justice “meaningless”.

“This bench itself is a testament to the division of the SC, which once again supports the earlier stated position of the ruling parties," the statement read, adding that the ruling alliance considers this as an “attack” on the parliament and its authority.

Highlighting the loopholes in the formation of the “controversial” bench — which does not include any of the judges who raised questions on the powers of the CJP — the coalition parties lamented the non-inclusion of judges from Balochistan and Khyber Pakhtunkhwa.

While “strongly condemning” the move, the statement added that attempts to snatch the authority of the parliament and to interfere in its constitutional domain will be resisted.

“No compromise will be made on the authority of the parliament in the light of the Constitution of Pakistan,” the statement reiterated.

The statement mentioned that the top court judges — Justice Isa and Justice Khan — had in their earlier judgments openly expressed their objection to the “one-man show”, biased and dictatorial behaviour, and the formation of special benches.

“With the formation of the eight-member controversial bench, the facts stated in the judgments of these honourable judges have become more clear,” the statement read.

“The constitution of the controversial bench in haste and fixing the bill for hearing, apart from the will and intent, also clearly expresses the decision to come which is sad and tantamount to murder of justice,” the ruling alliance maintained.

‘Alarming situation’

Minutes after the statement was released, Law Minister Azam Nazeer Tarar addressed a press conference along with ruling alliance leaders Qamar Zaman Kaira and Amin-ul-Haq and other members of the coalition parties.

Tarar reiterated that bill can be challenged by the citizens once its legislation, adding that the entire situation is “alarming” as the petitions against the "pre-mature" bill are being heard by a "selective bench".

He said that the bench does not comprise two senior-most judges and those placed on number five, seven, and eight according to the list of seniority are not part of the bench.

The bench is constituted on a "pick and choose" basis, the law minister said, adding that there is a conflict of interest as the bill was passed against the CJP and he himself was leading the bench.

He clarified the bill was “pre-mature” because it has not yet become an Act as the president returned the bill without signing it; however, it was fixed for hearing in a haste and a bench was formed.

Tarar said that all the bar councils unanimously rejected the formation of the bench. "Pakistan Bar Council, Sindh Bar Council, Balochistan Bar Council, Punjab Bar Council, Islamabad Capital Territory Bar Council and Khyber Pakhtunkhwa Bar Council boycotted the eight-member bench constituted to hear the pleas against the pre-mature bill," he added.

He said that the perception that a rift has been created between the parliament and the judiciary it is not because of the former.

"The parliament has the right as per the law and constitution to legislate for the interest of the people and to make the institutions strong," he added.

Tarar further added that all the coalition partners agree that it is not the right time to take up pleas against the bill as it has not yet been legislated.

He said that the institutions are interfering with the parliament's right to make laws, hoping that the bench would be dissolved today.

'Benches should be constituted in balanced manner'

Advisor to the Prime Minister on Kashmir Affairs and PPP leader Qamar Zaman Kaira said that the bill is with the parliament and hasn't been signed by the president yet but the Supreme Court has taken up the pleas against it.

"Do you want to prevent the parliament from using its authority? We will not accept it and not compromise on it," Kaira emphasised.

Shedding light on the constitution of the bench, the PPP leader said that the parties do not agree with this method.

He said that the rifts among institutions are leading the country towards a bad situation. "We only want the benches to be constituted in a balanced and proper manner," he added.

The bill

The Supreme Court (Practice and Procedure) Bill, 2023 aims to give the power of taking suo motu notice to a three-member committee comprising senior judges, including the chief justice. It also aims to have transparent proceedings in the apex court and includes the right to appeal.

Regarding the formation of benches, the bill states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges. It added that the decisions of the committee would be taken by a majority.

Regarding the apex court's original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the committee.

The bill says that if the committee is of the view that a question of public importance with reference to the 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 SC which may also include the members of the committee, for adjudication of the matter.

On matters where the interpretation of the Constitution is required, the bill said the committee would compose a bench comprising no less than five apex court judges for the task.

Regarding appeals for any verdict by an apex court bench that exercised jurisdiction under Article 184(3), the bill said that the appeal would have to be filed within 30 days of the bench's order for a larger SC bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

It added that this right of appeal would also extend retrospectively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the SC (Practice and Procedure) Bill, 2023 on the condition that the appeal was filed within 30 days of the act's commencement.

The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, it states that an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing.

The bill said that its provisions would have effect notwithstanding anything contained in any other law, rules, or regulations for the time being in force or judgement of any court, including the Supreme Court and high courts.