On April 13, 2023, the Supreme Court of Pakistan issued an interim order barring the government from enforcing the Supreme Court (Practice and Procedure) Act, 2023.
The original bill was approved by the federal cabinet on March 28, 2023, and then passed by the National Assembly (lower house) on March 29 and by the Senate (upper house) on the following day. However, the bill needed to be passed again after Pakistan’s president, Arif Alvi, declined to grant it assent because he claimed it was “beyond the competence of Parliament,” and therefore returned the bill to Parliament for review. After a joint sitting of Parliament passed the bill again on April 10, President Alvi for a second time refused to assent to the bill on the grounds that “the matter was sub judice,” referring to the challenge against the law before the Supreme Court.
Main Features of the Act
The act reportedly aims to “deprive the office of the chief justice of Pakistan (CJP) of powers to take suo motu notice in an individual capacity.”
Section 2 of the act provides that every matter will be decided by a bench constituted by committee instead of the sole discretion of the chief justice:
2. Constitution of Benches.– (1) Every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and two most senior judges, in order of seniority.
(2) The decisions of the Committee shall be by majority.
The act also limits the suo motu powers of the chief justice provided in Article 184(3) of Pakistan’s Constitution in cases involving matters of “public importance” and “fundamental rights”:
The Committee created under section 2 also has the power to constitute a bench of not less than five judges in matters that involve interpreting the Constitution:
4. Interpretation of the Constitution.– In the matters where interpretation of the constitutional provision is involved. Committee shall constitute a Bench comprising not less than five Judges of the Supreme Court.
Normally, the Supreme Court’s review of its own judgments is at the sole discretion of the chief justice. Under this act, a right of appeal is granted to the aggrieved party to a larger bench of the Supreme Court:
5. Appeal.– (1) An appeal shall lie within thirty days from an order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days. (2) The right of appeal under sub-section (1) shall also be available to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of this Act:
Provided that the appeal under this sub-section shall be filed within thirty days of the commencement of this Act.
Political and Judicial Controversy Surrounding the Bill
The federal government took this legislative initiative after the Supreme Court took a suo motu notice of the Election Commission of Pakistan (ECP) after it delayed provincial elections in the provinces of Punjab and Khyber Pakhtunkhwa. The government supported the ECP’s decision and saw the decision as an “unnecessary intrusion of the judiciary in the political matters” and as “the main cause of political instability.” The controversy is occurring amid a political crisis where former Prime Minister Imran Khan, the head of the opposition Pakistan Tehreek-e-Insaf (PTI) party, “launched a countrywide campaign to demand immediate national elections, otherwise scheduled later this year.”
Currently four petitions against the act have been filed in the Supreme Court. In its interim order, the court said that the law appears to be an act of Parliament as it has been “deemed to have been assented to” in accordance with Article 75(2) of the Constitution, and the National Assembly Secretariat has published it in the official gazette. However, the Supreme Court in its interim order suspended the implementation of the act because it believes that
… an interim measure ought to be put in place, in the nature of an anticipatory injunction. The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognized in our jurisprudence and other jurisdictions that follow the same legal principles and laws. It is therefore hereby directed and ordered as follows. The moment that the Bill receives the assent of the President or (as the case may be) it is deemed that such assent has been given, then from that very moment onwards and till further orders, the Act that comes into being shall not have, take or be given any effect nor be acted upon in any manner. (Interim Order para. 14.)
Tariq Ahmad, Law Library of Congress
May 2, 2023
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