ISLAMABAD: Amid a rising controversy involving the Supreme Court (Practice and Procedure) Bill 2023, President Dr. Arif Alvi may ask the apex court whether the new legislation is under the constitution of the country and doesn’t disregard the Supreme Court’s rules, by invoking the Court’s advisory jurisdiction under Article 186 of the constitution, it has been learnt.
The amendments made in the Supreme Court’s rules by the government passing the Supreme Court (Practice and Procedure) Bill 2023 which aims to deprive the office of the chief justice of Pakistan of powers to take suo-moto notice in an individual capacity, have sparked a fresh debate in the legal and political circles, especially on the motives behind the legislation. The move on part of the government comes at a time of a heightened political temperature and an unprecedented controversy regarding holding the general elections to the two provincial assemblies of Punjab and Khyber-Pakhtunkhwa with the supreme court due to rule on the issue within days.
According to the sources in the Pakistan Tehreek-e-Insaf, the president may send a reference under Article 186 of the Constitution, which is related to the Supreme Court’s advisory jurisdiction. It says, “If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. The Supreme Court shall consider a question so referred and report its opinion on the question to the President.”
“Given the controversy revolving around the Supreme Court Bill, 2023, it is likely that the president sends a reference to the apex court so as to get advice on the same,” said a source privy to the development. He said the president believes that the bill is contrary to the spirit of the authority vested in the chief justice under the scheme of things.
The Senate on March 30 passed the Supreme Court (Practice and Procedure) Bill 2023 after the federal cabinet approved it on March 28. The National Assembly had passed it a day ago as well. After the bill was passed by the senate, Senate Chairman Sadiq Sanjrani sent it to President Arif Alvi for his assent same day, reflecting the urgency on part of the government.
The 13-party ruling alliance is contesting the case of holding the elections in Punjab and Khyber-Pakhtunkhwa in the Supreme Court and the bill is being seen as an attempt to curtail powers of the chief justice who is heading the three-member bench. On the other hand, the PTI has termed the legislation an attack on the judiciary.
In a recent interview, President Alvi termed the timing of the bill questionable, suggesting that it could have been presented at another time. “It’s premature to say what I will decide as I have not seen the bill. This is a time of crisis, and I wish to play a positive role.” President Alvi has usually created hurdles in the legislation since the incumbent government came into power in April last year.
To add to the controversy, a special Supreme Court bench, with a two to one majority, ordered suspending all suo-moto cases — under Article 184(3) of the Constitution — until amendments are made to the Supreme Court Rules governing the chief justice’s discretionary powers. However, the Supreme Court, in a circular on March 31 “disregarded” the judgment authored by Justice Qazi Faez Isa ordering the postponement of suo-moto cases till amendments are made in the Supreme Court Rules 1980 regarding the discretionary powers of the chief justice to form benches.
In its circular, the Supreme Court noted that the observations made by the majority judgment in paras 11 to 22 and 26 to 28 were beyond the matter fixed before the court and “invokes its suo-moto jurisdiction”. Interestingly, the Supreme Court issued the circular hours before a four-member bench was to start hearing the Punjab and Khyber-Pakhtunkhwa election delay case. The circular noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment. Justice Shahid Waheed, however, raised objection, penned a dissenting note against the order saying that "the points raised and discussed in the order were not subject to the case".
At one hand, a SC bench suggested amendments in the Supreme Court rules to regulate constitution of the apex court benches and on the other hand, the parliament passed a bill to end the “one man show” giving new thrust to the continuing debate.
The president mentioned in the interview that whenever he gives an opinion, it is termed that it is not him, but of the PTI. The president's comment came after Prime Minister Shehbaz Sharif informed Alvi that his letter regarding the Punjab and Khyber-Pakhtunkhwa elections read like a PTI press release.
As the bill was moved in the Senate, PTI members offered strong opposition as they raised banners reading “attack on judiciary unacceptable”.
The president had given the date of April 30 after orders from the Supreme Court for elections in Punjab and Khyber-Pakhtunkhwa. However, on March 22, the ECP postponed the upcoming elections citing security reasons as the major cause behind the change of plan. Following this, Khyber-Pakhtunkhwa Governor Haji Ghulam Ali also penned a letter to the ECP and suggested that the polls in his province be held on the same date as Punjab. The PTI then moved the Supreme Court and the case is being heard by a three-member bench, headed by Chief Justice Bandial.
The PTI says that the bill reeks of serving personal interests. They believe that an effort is being made to give relief to PML-N supremo Nawaz Sharif by passing the bill which said that right of appeal would also extend retroactively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Supreme Court (Practice and Procedure), Bill 2023, on the condition that the appeal was filed within 30 days of the act’s commencement.
On matters where the interpretation of the Constitution is required, the bill said the abovementioned committee would compose a bench comprising no less than five apex court judges for the task. 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.
In October last year, President Alvi had asked the Supreme Court whether a new deal on the Reko Diq gold and copper mining project in Balochistan was legally safe under the Constitution of Pakistan and international arbitration.
The president in the president reference also asked the apex court whether the proposed Foreign Investment (Protection and Promotion) Bill 2022, whenever enacted, would be a valid law under the Constitution.
Canadian company Barrick Gold, which ended a long-running dispute with Pakistan in March last year to develop the mining project under a new agreement, earlier asked the government to get the deal stamped by parliament and the Supreme Court to make company’s investment in the project sustainable in the long term.