Daily Times

The Supreme Court (SC) on Thursday ruled that the Supreme Court (Practice and Procedure) Bill will not have any effect nor will it be implemented or enforced in any manner until further notice.

“In our view, the facts and circumstances presented here are extraordinary both in import and effect. Prima facie the contentions raised disclose that there is a substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this Court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision,” the written order issued by an eight-member bench headed by Chief Justice of Pakistan Umer Atta Bandial stated.

Besides the CJP, the larger bench comprises Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi and Justice Shahid Waheed.

Any interference in the functioning of the court, even on the most tentative assessment, would start as soon as the bill becomes an act, the court order said. “Accordingly, in our view, 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, recognised in our jurisprudence and other jurisdictions that follow the same legal principles and laws,” it continued. “As soon as the bill receives the assent of the president or is deemed to have received it, the order stated, the act that comes into effect shall not have any effect or be acted upon in any manner until further orders,” it added.

The detailed order said that while the bill is “not yet law it is nonetheless, with exactitude, that what will have the force of law, when the act comes into being,” adding that it could be considered and examined even at this stage.

“The bill prima facie seems to be open to question on the constitutional plane on several grounds which, inter alia, raise issues of a serious nature in relation to the independence of the judiciary. Such independence is deeply rooted in the fabric of the Constitution and forms an integral part of the structure of fundamental rights. Indeed, it is itself one such right. Any legislative effort that interferes with, or impinges on, the same should be subjected to close scrutiny,” the order said.

It further said that the bill, in clauses two to four, sought to regulate the manner in which appeals before the court were to be heard, in particular the benches that were to take up the cases and decide the same.

It went on to say that the bill appeared to be premised on the approach that Article 191 of the Constitution sets up a hierarchy in relation to the practice and procedure of the court.

Article 191 states the following: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court.” “On this view the Constitution is obviously at the top, followed by ‘law’ and then the rules made by the court itself. This hierarchical structure prima facie subordinates the rules made by the court to ‘law’ and therefore, the Supreme Court Rules, 1980 to the incoming act.

The regulation of the matters laid out in clauses two to four purports to trump anything contained in the rules.” The order said that clause eight of the bill sought to reinforce this by giving overriding effect for its provision over not only any rules but also any judgement of any court. “Prima facie, this approach is a serious encroachment upon, interference with and intrusion into the independence of the judiciary.” The order further stated that any intrusion in the practice and the procedure of the SC, even on the most tentative of assessments, would appear to be “inimical to the independence of the judiciary, no matter how innocuous, benign or even desirable the regulation may facially appear to be”. “Prima facie, therefore, when the bill and the act that is soon to come into being, is examined on the anvil of the most fundamental principles that underpin the Constitution, it can be regarded as seriously wanting in constitutional competence.”