Daily Times

Without a doubt, there has always been a lot of debate about the Chief Justice’s authority, procedures, and discretionary powers, particularly in relation to the Suo Moto proceedings under Article 184(3) of the Constitution and the makeup of the Supreme Court judges’ benches in light of crucial constitutional issues. Political parties, bar associations, and the legal profession all raised these issues at various points, but nothing has been done that should have been done sooner, either through legislation with the Supreme Court’s support or by the Supreme Court itself through amendment of the Supreme Court Rules of 1980.

However, the legal dispute between the previous administration and the superior judiciary over important constitutional questions compelled the government to pass the Practice and Procedure Act 2023, which addressed these issues relating to the operation of the Supreme Court. A three-member committee made up of senior judges, including the chief justice, was given the authority to take Suo Motu notice as part of the Supreme Court (Practice and Procedure) Act, 2023, which aimed to properly establish benches. Additionally, it covers the right to appeal and the topic of first hearing in front of the Supreme Court in order to ensure transparency in the Supreme Court’s processes.

In all circumstances, it would be crucial that the issue at hand be resolved as soon as possible and that the positive changes suggested by the Parliament through Practice and Procedure Act 2023 be maintained either through legislation or through Supreme Court Rules 1980.

The (Practice and Procedure Bill) 2023 was approved and passed by the National Assembly and Senate on March 29 and March 30, 2023 respectively. The President sent the bill back for reconsideration without his signature, but after meeting all requirements and regulations, the Joint Session of Parliament once more approved and passed the bill on April 10, 2023.

The Act suggested that every case, appeal, or matter before the Supreme Court be considered and decided by a bench made up of the Chief Justice of Pakistan and two senior judges, in that order. Additionally, it states that any matter involving the exercise of original jurisdiction under paragraph (3) of Article 184 of the Constitution must first be brought before the committee for review. If the committee determines that the matter involves the enforcement of one or more fundamental rights, it must then establish a bench consisting of at least three judges of the Supreme Court, which may also include committee members.

The Act suggests that an appeal be filed within 30 days of the larger bench of the Supreme Court receiving jurisdiction’s final order, and that the hearing date for such an appeal be set within a window of no more than 14 days. Additionally, it gives a party the freedom to select the attorney of its choosing when submitting a review application. A cause, appeal, or other matter’s application alleging urgency or requesting interim relief must be scheduled for hearing within 14 days of the application’s filing.

The Chief Justice of Pakistan (CJP) does not have the authority to create special benches or choose its members, as noted by Justice Qazi Faez Isa, who is currently the Chief Justice of Pakistan, and Justice Aminuddin Khan in a detailed order issued in early April 2023 in a case involving regulation of the Pakistan Medical and Dental Council (PMDC). They also stated that all hearings based on Suo Motu notices and cases of constitutional significance under Article 184(3) should be postponed until they are legislated upon, and since then he was not performing hid judicial functions.

However, on April 13, 2023, an eight-judge SC bench that was considering a batch of three petitions contesting the Supreme Court (Practice and Procedure) Bill 2023 gave the written order. Whether or not the bill received the president’s assent, it was ruled on the basis of judicial independence that “the act that comes into being shall not have, take, or be given any effect (and) not be acted upon in any manner,” and since then there has been a stay order against the legislation, which has also been criticized.

There is no legal dispute that the Chief Justice has the sole authority to establish benches for hearing all types of cases, including those brought or filed under Section 184(3) of the Constitution. However, the Supreme Court of Pakistan shall be composed of a Chief Justice to be known as the Chief Justice of Pakistan and such other Judges as may be determined by Act of Parliament, in accordance with Article 176 of the Constitution of Pakistan.

The Supreme Court’s interpretation of Article 191 and Article 175(2) of the Constitution will undoubtedly lead to the conclusion that either the Parliament has the legislative authority under Article to make laws with reference to the Supreme Court or the Supreme Court would have the prerogative granted by the Parliament undeclared. The new Chief Justice has now constituted the full court, which is a very good sign for determining the fate of the Practice and Procedure Act, 2023. However, in all circumstances, it would be crucial that the issue at hand be resolved as soon as possible and that the positive changes suggested by the Parliament through (Practice and Procedure Act 2023 be maintained either through Parliament legislation or through Supreme Court Rules 1980, which would improve the Supreme Court’s functioning and public trust.

The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: hafizahsaan47@gmail.com