Continuing the ongoing judicial saga, now at a conference of representatives of the Pakistan Bar Council, provincial bar councils, and high court and Supreme Court bar associations a joint declaration has been issued in support of the now suspended Supreme Court (Practice & Procedure) Bill, 2023. Saying that the challenges to the SC Bill were taken up in haste, and a “one-sided and controversial” bench was formed to do so, the declaration has also said that the bench thus formed — even before the law came into force — ended up further dividing the Supreme Court. In recent weeks, the use of suo-motu powers and the power to form benches has come under criticism from within the judiciary as well — the argument being that these are not an individual’s powers but powers vested in the institution of the judiciary. As the lawyers’ declaration says, for many years now, lawyers, bar councils and even judges have been noting that the suo-motu powers and bench-formation powers of the chief justice have to be regulated so that the independence and impartiality of the judiciary does not come under question. Which is presumably what the bill titled Supreme Court (Practice and Procedure) Bill 2023 aims to do: curtailing the powers of the CJP and also giving the right to appeal in all suo-motu cases with retrospective effect. It sailed through the Senate on March 30, without being sent to the relevant standing committee, a day after being passed by the National Assembly. President Arif Alvi returned the bill, saying the proposed law “travels beyond the competence of parliament”. However, in a preemptive hearing, the Supreme Court through an order — an ‘anticipatory injunction — said that while it will consider the constitutionality of the bill once it becomes law, the “Act “shall not have, take or be given any effect nor be acted upon in any manner” as it may be an interference in the independence of the judiciary.
Needless to say, all this has led to further controversy, which has now been highlighted by the declaration by representatives of lawyers’ bodies. Called ‘historic’ by many legal experts, the law proposes to limit the chief justice of Pakistan’s discretionary powers to take suo-motu notice. The bill says that every cause, appeal or matter before the Supreme Court shall be heard and disposed by a bench constituted by a committee comprising the chief justice of Pakistan and two senior-most judges of the SC. Any matter invoking exercise of original jurisdiction under Article 184(3) shall be first placed before the committee for examination; it has also added the right of appeal in cases decided under Article 184(3). By most accounts, this is the clause that will give Mian Nawaz Sharif and Jahangir Khan Tareen to retrospectively appeal their lifetime disqualification.
Lawyers have also said that they will be observing today (April 18) as a ‘black day’ against the suspension of the SC Bill by the Supreme Court. All this is hardly of any comfort for those who saw — rightly so — the judiciary as the loftier of institutions in the country: above petty political considerations or agendas. This is now a question for the country’s higher judiciary. Will it step out of what has now become a disturbingly polarized situation? More importantly, can it afford to appear to be politically partisan? There has to be a way out to make sure that people see justice as non-partisan. A judiciary this starkly at odds from within does not inspire much hope in its judgment. Among the questions has been one of the ‘timing’ of the bill. But has there ever really been a ‘right time’ to pass any such law in Pakistan? When most legal experts have said that this is a good bill and should be made into law, the judiciary charting into controversial waters has led to unnecessary musings over the very obvious, very open, and very no-holds-barred division in the highest court of the land. When talk runs rampant of there being ‘parallel’ supreme courts in the country, what hope can the average citizen hold for justice? There have been too many debates on the power of the suo motu, the bench formation powers of the CJ, the right to appeal, the process of appointing superior judges etc. It is time to settle these debates – and the only forum that can do this now is the Supreme Court itself. Justice is too important and too sacred a principle to be left to partisanship and powers vested in a single individual in the highest court of the land.