Pakistan’s government on Tuesday night introduced a bill in the parliament to curtail the discretionary powers of the chief justice, hours after Prime Minister Shehbaz Sharif said that “history would not forgive us” if parliament did not enact laws to curtail the powers of the country’s top judge.
Law Minister Azam Nazeer Tarar presented ‘The Supreme Court (Practice and Procedure) Act, 2023’, which was approved by the Cabinet earlier in the evening.
The development comes a day after two Supreme Court judges questioned the suo motu powers of the country’s top judge.
Tarar said that the bill prepared by the ministry of law and justice was deliberated by the cabinet and after its approval, he was presenting the bill before the parliament.
Giving the details, he said that the bill ensures that “every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and two senior-most judges, in order of seniority” and the decisions of such a committee shall be by majority.
Regarding suo motu powers, the draft states that any matter invoking exercise of original jurisdiction under Article 184 (3) shall be first placed before the committee of three senior-most judges.
“..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 of Pakistan which may also include the members of the Committee, for adjudication of the matter, it adds.
The legislation also allows appeals within 30 days of a verdict being issued on a suo motu case and enforces that a bench be constituted to hear such an appeal within 14 days.
“An appeal shall lie within thirty days from a final order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days,” according to the proposed bill.
After the bill was presented various members demanded that the bill should be sent to a committee to discuss it and report back before voting. As the law minister did not oppose the demand, the speaker announced to send the bill to a committee with hope that it would present its report soon.
Later, the Speaker prorogued the proceedings till Wednesday.
The bill as presented aimed to reduce the discretionary powers of the chief justice to take suo motu action and also set up benches for hearing of cases.
Addressing the joint session of parliament earlier, Sharif talked at length about the dissenting judgement by Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the apex court, who lashed out at the unlimited authority of the chief justice to take a suo motu (on its own) action on any issue and constitute benches of choice to hear different cases.
Their judgment was about the case of suo motu notice taken by Chief Justice Umar Ata Bandial on February 22 about elections in Punjab and Khyber Pakhtunkhwa provinces.
Speaking passionately about the need for new laws to limit the chief justice’s power, Sharif said if the legislation were not passed, “history would not forgive us”.
The suo motu power is based on the original jurisdiction of the court under Article 184 of the Constitution. However, its usage over the years has created an impression of partiality on the Chief Justices’ part.
It was openly challenged for the first time by the two judges who were part of a bench that, in its 3-2 majority decision of March 1, directed the Election Commission of Pakistan (ECP) to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in Khyber Pakhtunkhwa.
The five-member bench was reconstituted by Bandial, who took a suo motu action against the delay in elections and initially formed a nine-member bench to deal with the issue. However, two of the nine judges differed with the decision to take suo motu notice, while two other judges recused themselves, prompting the Chief Justice to form a new bench.
Justice Shah and Justice Mandokhail, in their detailed 28-page dissenting note, also rejected the 3-2 judgment in the suo motu case by saying that it was a 4-3 judgment to reject the maintainability of the case and lambasted the Chief Justice’s power to form a bench for important cases.
The coalition government led by Prime Minister Sharif, which is supporting the ECP’s decision to delay the election in the two provinces until October 8, is trying to use the parliament to curtail the powers of the Chief Justice.
The premier also said that the courts were treating Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan favourably and were not ready to hold Khan accountable.
Sharif said that “enough is enough” and the law would take its course while the government would not allow “the favourite” to play with Pakistan. He added that the Constitution clearly defined the division of powers between the legislature, judiciary and administration and set a red line that no one should cross.
The powers of the legislature defined by the Constitution and the powers of the judiciary were being flouted, the prime minister said. The joint session of parliament was summoned last week to discuss the key issues confronting Pakistan and provide guidelines to deal with those issues.
The development comes as the top court is hearing a case about the decision of the Election Commission of Pakistan to postpone the provincial election till October 8, well beyond the 90 days deadline by the constitution to hold elections after the dissolution of an assembly.
(With inputs from agencies)
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