CJP names 8-judge bench to hear pleas against bill to curb his powers

Headed by Chief Justice Umar Ata Bandial larger bench comprises Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed
n Petitioners argue ‘Parliament has no powers to pass such an act to curtail powers of Supreme Court’.

ISLAMABAD    -    Chief Justice of Pakistan Justice Umar Ata Bandial Wednesday constituted an eight-member bench to hear various petitions against the Supreme Court (Practice and Pro­cedure) Bill, 2023 on Thursday (today).

The bench is head­ed by the Chief Justice while other members include Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muham­mad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hassan Azhar Riz­vi and Justice Shahid Waheed.

Senior journalists Chaudhry Ghulam Hus­sain and Sami Ullah Abraham, and advo­cates Raja Amer Khan, Malik Amir Abdullah and Muhammad Sha­fay Munir had filed pe­titions before the Su­preme Court under Article 184(3) of the Constitu­tion to set aside the Bill 2023.

The petitioners prayed to the apex court to declare the ‘impugned’ bill as ultra vires and unconstitutional and of no legal effect. The joint sit­ting of Parliament on April 10 had passed the Supreme Court (Practice and Procedure) Bill, 2023, with amendments days after President Dr Arif Alvi re­turned the bill seeking to cur­tail the chief justice of Paki­stan’s powers to initiate suo motu and constitute benches amid protest by the Pakistan Tehreek-e-Insaf senators.

The petitioners contended the bill seeks to interfere in and then regulate the discharge of constitutional functions by the office of the CJP in exercise of assumption of jurisdiction and then judicial power of suo motu. A process of appeal has been provided, to slowdown, frus­trate and delay the holding of the provincial general elections. The entire objective thereof is to regulate suo motu proceed­ings and its orders.

They said it is now a settled law that suo motu jurisdiction, the assumption and exercise of judicial power by the apex court, is to be invoked and set in motion only by the Chief Jus­tice. This issue stands decid­ed in an elaborate judgement reported as PLD 2022 SC 306. The very initiation of the im­pugned action, endorsement by the cabinet, placement of there­of and approval by the Parlia­ment is a pure and simple mala fide action. It is a fraud on the Constitution.

They argued that the im­pugned amendments were made in order to achieve the government’s target which was to provide undue advantages to Mr Nawaz Sharif as well as to sabotage and derail the fully announced and scheduled elec­tion process in two provinces of the country. 

The petitioners said that the respondents have not acted fair­ly, reasonably or justly, hence, the matter at hand is subject to intervention by this Court whilst exercising its jurisdiction as the respondents are primar­ily responsible for ensuring the complete compliance of provi­sions of the constitution.

They added that the office of the respondents, whilst acting in the garb of administrative and policy matter immunity, is required to act faithfully in the best interest of the public and exchequer, they added.

They submitted that the Con­stitution had made it clear that the “independence of the judi­ciary” should be fully secured and the “Parliament has no powers to pass such an act to curtail the powers of [the] Su­preme Court or its chief justice or the judges”. It maintained that the president had “high­lighted the aspects” that re­quired reconsideration, but the Parliament failed to reconsider the same and passed the bill be­yond its powers.

The petitions said that Arti­cle 191 of the Constitution stat­ed that “subject to the Constitu­tion and law, the Supreme Court may make rules regulating the practice and procedure of the court”. The powers to make SC rules were “expressly entrust­ed” to the court itself and not to the Parliament, it added.

They noted that according to the Fourth Schedule given un­der Article 70(4) of the Feder­al Legislative List’s item No55, the petition maintained that the Parliament only possessed powers in relation to the en­largement of the jurisdiction of the apex court, but not to curtail its powers.

According to the petitions, the SC while exercising powers un­der Article 191 of the Constitu­tion, has already framed rules regulating its procedure and practice, and “Order X1 of Su­preme Court Rules 1980 pro­vides Constitution of Benches, and this power lies with the” CJP and these powers could not be curtailed through an act of the Parliament being beyond its jurisdiction and areas of enact­ment.

‘FUNDS FOR GENERAL ELECTIONS IN THE PUNJAB’

The Supreme Court of Paki­stan Wednesday issued notices to Governor State Bank of Paki­stan, Secretary Ministry of Fi­nance and Attorney General for Pakistan (AGP) for not provid­ing funds to the Election Com­mission of Pakistan (ECP) to hold the general elections in the Punjab.

The apex court also issued no­tices to the next senior most of­ficial of the Bank, the next most senior official of the Finance Ministry, Secretary and Director General (Law) of the Commis­sion. They were directed to ap­pear in person before the Court (in Chambers) on Friday (April 14) at 11:00 a.m.

The SBP governor and the of­ficial were asked to bring with them the record and details of all monies whatsoever of the federation/federal government lying with or under the control, custody or management of the Bank under any law, rule, prac­tice or agreement, including in particular (but without limita­tion) (i) in terms of the Federal Government Receipt and Pay­ment Rules, 2021 (with spe­cific reference to Rules 3 and 4 thereof) framed under the Public Finance Management Act, 2019 and/or (ii) Section 21 of the State Bank of Paki­stan Act, 1956.

The secretary finance and the next most senior official were asked to bring with them all the relevant record and shall place before the Court a de­tailed report as to why the or­der of the Court made in para 5 of Const. P. 5/2023 has not been complied with, as stated by the Commission. The ECP Secretary and DG-Law to bring with them full record pertain­ing to the general elections to the Punjab and KPK Assem­blies. The ECP a day ago (Tues­day) in a sealed envelope, filed a report in the SC’s Registrar’s Office regarding the funds. The Commission report states; “No funds have at all been released and provided to it as required by the order of the Court.”

Assistant Registrar (Civil-II) Noor Mustafa Shah issued the statement. It said the failure of the federal government to com­ply with the order of the Court is prima facie disobedience. The consequences that can flow from such prima facie defiance of the Court are well settled and known. Every person who em­barks upon, encourages or in­stigates disobedience or defi­ance of the Court can be held.

“The result of the present pri­ma facie disobedience is that yet again, the holding of gen­eral elections in a timely man­ner as mandated by the Consti­tution may be put in jeopardy. The question of the provision of funds for such a vital con­stitutional purpose is some­thing that requires immediate attention which takes priority over proceeding against those who may have committed con­tempt of the Court,” said the statement.

A three-member bench, head­ed by Chief Justice of Pakistan Justice Umar Ata Bandial, and comprised Justice Ijaz ul Ah­san, Justice Munib Akhtar on April 4 had fixed May 14 as the polling day for the Punjab elec­tion, and asked the Commission to file a report in the Court by 11.04.2023 stating whether the said funds have been provided and received and if so, whether in full or in part.

In its order the bench said; “The federal government shall forthwith and in any case by 10.04.2023 release and pro­vide to the Commission funds i.e. Rs21 Billion for the general elections to the Punjab and Khy­ber Pakhtunkhwa Assemblies.

The Commission was directed to file a report in the Court by 11.04.2023 stating whether the said funds have been provided and received and if so, wheth­er in full or in part. The report shall be placed before the mem­bers of the Bench for consider­ation in Chambers.

The Supreme Court order said: “If the funds have not been provided or there is a shortfall, as the case may be, the Court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard.”

The government has so far not issued the funds for polls and instead referred the mat­ter of election funds to the Par­liament. Finance Minister Ish­aq Dar introduced the “Charged Sums for General Elections (Provincial Assemblies of the Punjab and the Khyber Pakh­tunkhwa)” Bill 2023 in both the houses of parliament.

The bill is aimed at carving a legal way for the release of Rs21 billion funds for holding elec­tions in Punjab and Khyber-Pa­khtunkhwa. Dar introduced the piece of legislation as ‘money bill’, which gives the voting right on it to the National Assembly and a maximum 14-day time to the Senate to give the recom­mendations on the bill.

The SC order said: “If the funds have not been provided or there is a shortfall, as the case may be, the court may make such or­ders and give such directions as are deemed appropriate to such person or authority as neces­sary in this regard.”