Law clipping CJP’s powers curtails judicial independence unconstitutionally: SCBA

• SCBA says parliament violated the principle of access to justice. 
• Submits 6-page response on SC (Practice & Procedure) Act 2023. 
• Says legislation will create many problems in top court working.

ISLAMABAD: The Supreme Court Bar Association (SCBA) on Tuesday in its response to the SC (Practice and Procedure) Act 2023 told the top court that the law was a “negation of the Constitution” and is “causing unconstitutional inroads into the independent judicial functions” of the apex court.

The SCBA submitted its response after petitioners in the case were directed by a full court formed by Chief Justice of Pakistan (CJP) Qazi Faez Isa to submit their written replies by September 25. The top lawyers’ body said it submitted the response a day late due to “electricity failing”.

In its six-page written reply, the SCBA stated that Section 2 of the law directs the Supreme Court to form a three-member committee — comprising the CJP and two most senior judges — for the constitution of benches a dictation to the parliament and deprives the CJP of his “constitutional mandate”. 

It added that the CJP’s rights were being deprived as he was being stopped from managing the Supreme Court affairs “as an independent organ of the judiciary” and bench formation.

The body views that Section 2 of the law “clearly encroaches upon the judicial domain” and is against the “independence of the judiciary”.

‘Section 3 violates principle of trichotomy’

The SCBA also contended that Section 3 of the law “dictates the manners” in which the original jurisdiction shall be exercised by the Supreme Court while dealing with Article 184(3). It added that curtailment of decision-making was “declared encroachment in the domain of independence of the judiciary”.

“The legislation surely will create many problems in the working and decision making of Supreme Court and will also cause issues/problems in the enforcement of fundamental rights of public importance,” contends the lawyers’ body.

Language of law ‘directory in nature’

The SCBA has also contended the language used in the law is “directory” and parliament, via the law, was commanding the Supreme Court on “managing: its affairs including judicial functions

“It was negation of the Constitution as well as causing unconstitutional inroads into the independent judicial functions of the Supreme Court of Pakistan,” the SCBA has stated.

‘Parliament lacked legislative competence’

Furthermore, the SCBA has contended that giving the right of appeal can only be done through a constitutional amendment.

“Parliament did not possess the 2/3 majority when Act XVII of 2023 was passed. Parliament lacked legislative competence,” the top bar association said. It further contended the law “person-specific, purpose-specific and time-specific”.

The body also urged the apex court to seek a “record of parliamentary proceedings” on the law to examine the “constitutionality and the intention of legislators”.

The body also contended that the change of counsel provided in the law would not serve the “ends of justice neither will be useful”. It also added that making it liable on the SC to fix urgent petitions for hearing within 14 days under section 7 of the law was an “encroachment in the administration of Supreme Court of Pakistan”.

‘Section 8 bulldozes whole judicial system’

The SCBA also contends that Section 8 of the law “bulldozed the whole judicial system and its working” as it states that “the provisions of this Act shall have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgment of any Court including the Supreme Court and a High Court”.

“The provision clearly was enacted for the benefit of any or many as desired and it also amounts to negation of the Constitution of Pakistan and its provision dealing with the subject in issue. If section 8 remains on the statute book it will bring anarchy and lawlessness in the State,” said the SCBA. It added the state has been defined in Article 7 which does not mention the judiciary and “acknowledged” it as an “independent organ of State having power of judicial review”.

The SCBA concluded that the lawmakers by passing this law “totally ignored” their oath of preserving, protecting and defending the Constitution.

“The basic features of the Constitution in preamble and article 2A of the Constitution regarding Objective Resolution the aim and object of the sovereign people of Pakistan who entrusted the parliamentarians. The authority to be exercised has been negated and the will of the people of Pakistan to abide by the commitment with the constitution ignored and the principle of access to justice as fundamental of right has been violated,” said the SCBA and urged the SC to declare it “ultra vires the Constitution”.

Case background

On April 13, an eight-member bench of the Supreme Court stayed the implementation of the law, which deals with the powers of the top judge in matters of public interest and seeks to limit the suo moto powers of the chief justice of Pakistan.

During the previous hearing in June, the similarities between the Supreme Court (Review of Judgments and Orders) Act 2023 — which relates to the right of appeal in suo motu cases — and the SC Practice and Procedure Act were discussed with Attorney General for Pakistan (AGP) Mansoor Usman Awan saying that parliament could look into “harmonising” the two laws.

The then-CJP Umar Ata Bandial— while he welcomed the proposal — said that the federal government should take the top court into consideration when making any legislation related to the judiciary.

Following CJP Isa’s elevation as the country’s top judge, the petition was fixed for hearing on the first day of his tenure. The top judge had constituted a full court to hear the pleas challenging the law and was televised making it the first time in the country’s judicial history, the Supreme Court allowed live telecast of proceedings on the petitions challenging the contentious law.

During the day-long hearing, a number of queries were raised by different members of the bench and the attorney general and lawyers sought time to submit their responses. 

To this effect, the court directed the lawyers to submit their responses by September 25 and adjourned the hearing till October 3. 

Furthermore, to continue the functioning of the Supreme Court, CJP Isa constituted a three-member committee — comprising himself, Justice Sardar Tariq Masood and Justice Ijazul Ahsan — to assign cases and form benches.