Parliament and broad sections of the legal fraternity and the civil society were already up in arms against CJP Umar Atta Bnadial entertaining the matter. Their collective outrage is now at fever pitch.
By Naveed Naqvi
ISLAMABAD: An 8-member bench of the Supreme Court Pakistan Thursday issued an “anticipatory injunction” against a judicial reform law set to go into effect later this month.
The new law, purporting to enact judicial reform by spreading the suo motu jurisdiction of the SCP and the CJ’s power to appoint benches more broadly by including the next two senior-most SCP Justices into such decisions, will go into effect on April 21, 2023.
A joint sitting of Parliament passed the Supreme Court (Practice and Procedure) Act, 2023, for the second time on April 10, 2023, after President Arif Alvi declined to sign it into law.
A nominee of the former prime minister Imran Khan, Alvi has come under sharp criticism from parliamentarians for playing partisan politics instead of discharging his constitutional ceremonial duty.
Under the Constitution, a law returned by the President without signing automatically goes into effect 10 days after passing Parliament the second time, or when signed by the President, whichever comes earlier.
But the SCP in Thursday’s order says, “The moment that the Bill [is due to go into effect], 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.”
The 8-page written order says, “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.
“Such intermeddling in the functioning of the Court, even on the most tentative assessment, will commence as soon as the Bill becomes the Act. Accordingly, in our view an interim measure ought to be put in place, in the nature of an anticipatory injunction.”
The bench, headed by CJP Umar Atta Bandial, said the law itself “could be considered and the constitutionality or otherwise of its provisions examined by the Court” before it can be allowed to go into effect.
The judges hold forth that any intrusion in the practice and procedure of the Court, 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”, says the order.
The order was received with outrage by powerful voices in the legal fraternity, the civil society, and Parliament alike. Constitutional law expert Reema Omer, tweeting as @ reema_omer, said the order against a bill (not even law yet) based on “tentative assessment” is farcical.
“[It] is inconsistent with the Constitution; trespasses into Parliament’s domain; and makes a complete mockery of settled law as well as common sense”, she added.
“Who will judge the judges???”, retorted Supreme Court Report Hasnat Malik, tweeting from the handle @ HasnaatMalik and quoting Omer’s tweet.
The court appointed May 2, 2023 as the next date of hearing for hte case and issued notices to JUI, PPP, PML(N), MQM, PTI BAP, PML-Q and declared that political parties can become part to this case if they want.
It also ordered notices to be issued to the Attorney General, the Supreme Court Bar Association and the Pakistan Bar Council for assistance.
The complete text of the SCP order is given below.
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