Islamabad (Web Desk/Agencies): President Dr Arif Alvi on Saturday returned the Supreme Court (Practice and Procedure) Bill, 2023 for reconsideration to the Parliament as per the provisions of Article 75 of the Constitution.
The bill, passed by both houses of the Parliament, aims to deprive the office of the chief justice of Pakistan (CJP) of powers to take suo motu notices in an individual capacity.
According to a statement issued by the President Secretariat, the president observed that the Bill ‘prima-facie travels beyond the competence of the Parliament and can be assailed as a colourable legislation’.
President Alvi said that he thought it fit and proper to return the bill, in accordance with the Constitution, with the request for reconsideration in order to meet the scrutiny about its validity (if assailed in the Court of Law).
The president said that after an in-depth consideration of the Supreme Court (Practice and Procedure) Bill, 2023, “to provide for the practice and procedure of the Supreme Court of Pakistan”, the following aspects required due consideration: –
Article 191 of the Constitution empowered the Supreme Court ‘to make rules regulating the practice and procedure of the Court’.
Under such enabling provisions of the Constitution, the Supreme Court Rules 1980 had been made and in force duly validated and adopted by the Constitution itself.
“These time-tested Rules are being followed ever since the year 1980 – any tinkering with the same may tantamount to interference with the internal working of the Court, its autonomy and independence,” it was added.
The Constitution was founded on the concept of trichotomy of power – three pillars of the State whose domain of power, authority and functions were defined and delineated by the Constitution itself. The Parliament has also been given the power under Article 67 that stated
“subject to the Constitution, a House may make rules for regulating its procedure and the conduct of its business….”. Article 191 stated that “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.
Articles 67 & 191 are akin to each other and recognize the autonomy and independence of each other respectively – barring interference of one into the other’s domain.
“Supreme Court of Pakistan is an independent institution as visualized by the founding fathers that in the State of Pakistan ‘independence of judiciary shall be fully secured’. With such an objective in view, Article 191 was incorporated and the Supreme Court was kept out of the law-making authority of the Parliament,” the president cited another aspect.
The fourth aspect said that the competence of the Parliament to make laws stemmed from the Constitution itself.
Article 70 related to ‘introduction and passing of Bills’ with respect to any matter in the Federal Legislative List – enumerated in the Fourth Schedule of the Constitution.
Followed and further affirmed were the provisions of Article 142(a) that Parliament could make laws ‘with respect to any matter in the Federal Legislative List’.
Entry 55 of Part I of Fourth Schedule while empowering the Parliament to make laws in respect of ‘jurisdiction and powers of all courts except the Supreme Court’ especially excluded the Supreme Court.
“Thus, the Bill prima-facie travels beyond the competence of the Parliament and can be assailed as a colourable legislation,” it was added.
The constitution conferred the Supreme Court with Appellate Jurisdiction (Articles 185 – 212), Advisory (Article 186), Review (Article 186) and Original Jurisdiction (Article 184). Article 184(3), the focus of the Bill related to the original jurisdiction of the Court – providing for the mode and manner for invoking it and providing Appeal.
“The idea may be laudable but can such a purpose be achieved without amending the provisions of relevant Articles of the Constitution – established law is that the provisions of the Constitution cannot be amended by an ordinary law as the Constitution is a higher law – father of laws – a Constitution is not an ordinary law, but rather an embodiment of fundamental principles, higher law, and law above other laws,” the president observed.
On March 30, the federal cabinet approved the bill and afterwards, the National Assembly passed it as well after a few amendments suggested by the Standing Committee on Law and Justice.
On March 30, it was passed by the Senate and sent to the president for assent amid a deepening political and constitutional crisis in the country over elections
After President Alvi's refusal to assent to the legislation, the government is likely to get through this bill from a joint session of the parliament.