ISLAMABAD  -  Chief Justice Qazi Faez Isa has formed a full court to hear the petitions challenging the Su­preme Court (Practice and Procedure) Act 2023.

The full court headed by CJP Isa will conduct hearing of the case on today as the 15-mem­ber bench of the apex court will resume the proceedings which were earlier adjourned indefinitely.

In April, an eight-member bench headed by then CJP Umar Ata Bandial had suspended the ef­fects of the legislation, which regulates the discretionary pow­ers of the CJP’s office to take suo moto notice through a commit­tee of three senior-most judges including himself. Since the en­actment of the SC (Practice and Procedure) Act 2023, Justice Isa had avoided being part of a bench to hear the cases. 

The outgoing government of Pakistan Democratic Movement (PDM) had enacted the Su­preme Court (Practice and Pro­cedure) Act, 2023 with an aim of clipping the chief justice’s powers to form benches and fix any case before him. Howev­er, an eight-member bench had suspended the bill’s implemen­tation after a set of three peti­tions were filed challenging it.

This Act serves multiple purpos­es, including the delegation of suo motu notice-taking authority to a three-member committee com­posed of senior judges, including the chief justice. The bill aims to ensure transparent proceedings within the apex court and safe­guard the right to appeal. It out­lines the constitution of benches, specifying that a committee con­sisting of the chief justice and the two most senior judges will be re­sponsible for constituting bench­es to handle cases, and decisions will be reached by majority vote. Regarding the cases invoking the apex court’s original jurisdiction under Article 184(3), the legis­lation stipulates that they must first be presented to the afore­mentioned committee for con­sideration. Further, it grants the committee the authority to form a bench comprising at least three judges from the apex court, which may include members of the com­mittee itself, to adjudicate on mat­ters of significant public impor­tance relating to the enforcement of fundamental rights.

In this matter, three petitioners had moved the apex court and challenged the Supreme Court (Practice and Procedure) Bill, 2023 praying it to declare the ‘impugned’ bill as ultra vires and unconstitutional and of no legal effect. The joint sitting of Par­liament on April 10 had passed the Supreme Court (Practice and Procedure) Bill, 2023, with amendments days after Presi­dent Dr Arif Alvi returned the bill seeking to curtail the chief jus­tice of Pakistan’s (CJP) powers to initiate suo motu and constitute benches amid protest by the Pa­kistan Tehrik-e-Insaf Senators.

The petition stated that during the proceedings of the Supreme Court’s suo motu hearing re­garding the delay in Punjab polls, “the federal government along with the PDM started a vi­cious campaign in [the] general public and media to undermine the reputation and credibility of [the] judges” of the SC, “es­pecially” the CJP. It further stat­ed that with its “agenda”, the in­cumbent government through the Ministry of Law proposed a bill for the curtailment of pow­ers of the CJP in a “hurry without adopting the due course of law and in violation of Article 70 (1 and 4) of the Constitution”.

It stated that the bill was pre­sented to the president for his assent but was sent for recon­sideration by Alvi because it “was against the above-said Constitutional provisions”.

Petitioner argued, “Again, with­out taking into consideration and discussions on the objections by the president on [the] bill in question, the Parliament again in a hurry and without adopting the due course of law, beyond [the] powers of the Parliament, passed the bill on April 10 in a joint session”. The petition con­tended that the Constitution had made it clear that the “indepen­dence of the judiciary” should be fully secured and the “Parlia­ment has no powers to pass such an act to curtail the powers of [the] Supreme Court or its chief justice or the judges”. It main­tained that the president had “highlighted the aspects” that required reconsideration, but the Parliament failed to recon­sider the same and passed the bill beyond its powers. The peti­tion said that Article 191 of the Constitution stated that “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and pro­cedure of the court”. The powers to make SC rules were “express­ly entrusted” to the court itself and not to the Parliament, it add­ed. It noted that according to the Fourth Schedule given under Ar­ticle 70(4) of the Federal Legisla­tive List’s item No55, the petition maintained that the Parliament only possessed powers in rela­tion to the enlargement of the ju­risdiction of the apex court, but not to curtail its powers. Accord­ing to the petition, the SC while exercising powers under Article 191 of the Constitution, has al­ready framed rules regulating its procedure and practice, and “Or­der X1 of Supreme Court Rules 1980 provides Constitution of Benches, and this power lies with the” CJP and these powers could not be curtailed through an act of the Parliament being beyond its jurisdiction and areas of enactment.