CJP’s powers under scrutiny

Author: Agencies

In a bid to limit the discretionary powers to take suo motu notice by Pakistan’s top judge, Law Minister Azam Nazeer Tarar Tuesday tabled the Supreme Court (Practice and Procedure) Bill, 2023 in the National Assembly.

Before being presented in the Lower House, the bill was approved by the federal cabinet on Tuesday. The cabinet summary for the Supreme Court (Practice and Procedure) Bill, 2023, said the exercise of original jurisdiction by the apex court under Article 184(3) of the Constitution was a “subject of discussion by various forums”.

The development came a day after two Supreme Court judges – Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail – raised questions over the powers of the CJP, saying the apex court “cannot be dependent on the solitary decision of one man, the Chief Justice”. “This court cannot be dependent on the solitary decision of one man, the Chief Justice, but must be regulated through a rule-based system approved by all judges of the court under Article 191 of the Constitution,” Justice Shah and Justice Mandokhail wrote in a 27-page dissenting note for the apex court’s March 1 verdict in Punjab and Khyber Pakhtunkhwa suo motu.

The bill includes shifting the powers of taking suo motu notice from the chief justice to a three-member committee comprising three senior judges.

Moreover, the bill also includes a clause regarding the right of challenging the decision which could be filed within 30 days and will then be fixed for a hearing in two weeks’ time.

According to the bill, every clause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the committee comprising the CJP and two senior judges, in order of seniority.

The bill also mentioned that the decision of the committee shall be by the majority.

It was also mentioned in the bill that any matter invoking the exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be placed before the committee constituted under section 2 for examination and if the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court which may also include the members of the committee, for adjudication of the matter. Meanwhile, in matters where interpretation of the constitutional provision is involved, the committee shall constitute a bench comprising not less than five judges of the apex court.

The bill also grants the party to appoint counsel of its choice for filing a review application under Article 188 of the Constitution. It should be noted that the counsel, for this purpose, shall mean an advocate of the Supreme Court. “An application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within fourteen days from the date of its filing,” the bill read. The bill was presented in the National Assembly by Law Minister Azam Nazeer Tarar, who said the use of Article 184(3) in the country’s judicial history had garnered a lot of criticism, particularly from bar associations.

“There were also periods when the Supreme Court took three to four suo motu notices in a day on administrative matters. If you look at history then many important national assets were denationalised and privatised … but all those matters were reversed by Article 184(3) proceedings, the results of which are before us.” He said that suo motu notices were taken on trivial issues which “did nothing to add to the Supreme Court’s sanctity” and remained subjects of discussion. Tarar said some former CJPs had used their rights in a way that “harmed the institution’s sanctity and violated the trichotomy of powers … because of which fingers were pointed at the court’s status and sanctity”. He said there was a “consistent demand” for parliament to deliberate on how benches should be constituted, how Article 184(3)’s jurisdiction should be exercised and the right of appeal in suo motu cases.

Tarar said the dissenting note had “unleashed a wave of concern … that due to this division in the institution and this power which has been given to an individual, there is some kind of harm” to the apex court. He said the law ministry proposed the bill, which the federal cabinet deliberated upon and unanimously approved. Subsequently, NA Speaker Raja Pervaiz Ashraf referred to the bill to the law and justice committee.

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