President returns bill curtailing CJP powers

Asim Yasin & Muhammad Saleh Zaafir
Sunday, Apr 09, 2023

ISLAMABAD: President Dr Arif Alvi on Saturday returned the bill curtailing the powers of the Chief Justice of Pakistan (CJP) with the request for reconsideration in order to meet the scrutiny about its validity.

The president returned the Supreme Court (Practice and Procedure) Bill 2023 for reconsideration to the Parliament as per the provisions of the Article 75 of the Constitution, stating that the bill prima-facie travels beyond the competence of the Parliament and can be assailed as a “colourable legislation”.

The bill was approved by both the houses of Parliament last month and sent to the president for assent amid a deepening political and constitutional crisis in the country over elections in Punjab and Khyber Pakhtunkhwa.

After Alvi’s refusal to assent to the legislation, the government has decided to get this bill through from a joint session of Parliament.

SAPM on Interior and Legal Affairs Ata Tarar has said that the president’s points on the bill carried no weight and the joint session would pass the bill with majority.

The president said 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:

i. Article 191 of the Constitution empowers 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 have 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.

ii. Our Constitution is founded on the concept of trichotomy of power – three pillars of the state whose domain of power, authority and functions are defined and delineated by the Constitution itself. The Parliament has also been given the power under Article 67 that states “subject to the Constitution, a House may make rules for regulating its procedure and the conduct of its business…”

The Article 191 states that “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”. Articles 67 and 191 are akin to each other and recognise the autonomy and independence of each other respectively – barring interference of one into the other’s domain.

iii. The Supreme Court of Pakistan is an independent institution as visualised 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.

iv. The competence of the Parliament to make laws stems from the Constitution itself. Article 70 relates 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 are the provisions of Article 142(a) that Parliament can 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.

v. The Constitution confers 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 relates 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.

Meanwhile, Prime Minister Shehbaz Sharif castigated President Alvi for returning the bill unsigned and called him a worker of the Pakistan Tehreek-e-Insaf (PTI).

“President Alvi returning the Supreme Court Bill duly passed by Parliament is most unfortunate,” the prime minister said in a hard-hitting tweet hours after the president returned the bill to the legislature.

The prime minister said the president has belittled his office through his actions as he follows the PTI chief’s orders rather than fulfilling his constitutional duties.”Through his conduct, he has belittled the august Office by acting as a worker of the PTI, one who is beholden to Imran Niazi more than the Constitution & demands of his Office,” he added.

In her reaction, Pakistan Peoples Party leader and Minister for Climate Change Senator Sherry Rehman said the president’s act proved that he was not the president of the country but the PTI secretary general.

“Dr Arif Alvi has seen every decision of the Parliament from Pakistan Tehreek-e-Insaf’s point of view and even before receiving the bill, he had given his stand on it in an interview to a private channel,” she said.

Sherry said the president was saying that the bill was beyond the power of the Parliament but for three and a half years, he has been running the President House like an ordinance factory. “How can he be aware of the powers of Parliament? Do not teach the Parliament to legislate,” she said.

The government, meanwhile, decided to place the bill before the joint sitting of the Parliament tomorrow (Monday) afternoon. It will be sent to the president for his assent immediately after the passage.

The joint sitting is already in session and was adjourned for Monday, April 10, early this month. The federal cabinet had requested earlier this week that the president immediately sign the bill, in an effort to resolve the country’s constitutional and political crisis.

The sources pointed out that the bill would become act (Enforced Law) on April 20 that would help in filing an appeal against the three-bench judgment that has already been discarded by the Parliament and the government separately.

It is believed that it would also pave the way for review appeal against the disqualification of former prime minister and PMLN supremo Nawaz Sharif.

The bill aims at clipping suo moto powers of the CJP in an individual capacity and constitute benches on his own.

The sources in the Law and Justice Ministry told The News that remarks of the president were politically motivated and reflective of the whims of a political party.