ISLAMABAD: A bill curtailing the chief justice’s authority was returned on Saturday by President Arif Alvi with a request for reconsideration in order to fend off questions about its legality.
The president returned the Supreme Court (Practice and Procedure) Bill, 2023 to the parliament for review in accordance with the provisions of Article 75 of the Constitution, claiming that the bill prima-facie travels outside the authority of the parliament and may be challenged as colorable legislation.
The law was passed last month by both chambers of parliament and sent to the president for assent, amid escalating political and constitutional crises in the country over the elections in Punjab and Khyber Pakhtunkhwa.
After Alvi declined to sign the measure, the administration is expected to pass this legislation in a joint session of parliament.
President Dr Arif Alvi has returned the Supreme Court (Practice and Procedure) Bill, 2023 for reconsideration to the Parliament as per the provisions of the Article 75 of the Constitution, stating that the Bill prima-facie travels beyond the competence of the Parliament – pic.twitter.com/SM7HXVVa5Q
— The President of Pakistan (@PresOfPakistan) April 8, 2023
In a letter to Prime Minister Shehbaz Sharif, President Alvi indicated that he thought it was necessary and proper to return the law with a request for reconsideration in order to satisfy the constitutional analysis of its constitutionality. (if assailed in the Court of Law).
After careful analysis, Alvi identified a number of factors that should be taken into account.
According to President Alvi, the SC Rules of 1980 were created in accordance with enabling laws like Article 191 of the Constitution, which gives the supreme court the authority to create rules governing the practise and procedure of the court, and were “made and in force duly validated and adopted by the Constitution itself.”
“These time-tested rules are being followed ever since the year 1980 — any tinkering with same may tantamount to interference with the internal working of Court, its autonomy and independence,” the letter added.
The division of powers, according to the president, needs to be reconsidered.
“Our Constitution is based on the trichotomy of power, or the three pillars of the State, whose sphere of influence, authority, and responsibilities are set forth and defined by the Constitution itself.”
The authority to “make rules for regulating its procedure and the conduct of its business[…]” was granted to the parliament by Article 67, according to Alvi. In the meantime, the Supreme Court is given the authority to “make rules regulating the practise and procedure of the Court” under Article 191.
Articles 67 and 191 are similar to one another and acknowledge each other’s autonomy and independence, respectively, subject to neither interfering with the other’s territory, the letter stated.
The president also noted that the supreme court was an independent institution, as intended by Pakistan’s founding fathers, who declared that the “independence of the judiciary shall be fully secured” in their nation.
With this objective in mind, Article 191 was introduced, and the Supreme Court was excluded from the Parliament’s legislative power, it said.
The letter further emphasised that the Constitution itself gives the parliament the authority to enact laws.
Article 70 of the Constitution’s Fourth Schedule states that it pertains to the “introduction and passing of Bills” with regard to any item on the Federal Legislative List.
According to entry 55 of Part I of the Fourth Schedule, which gives the Parliament the authority to pass legislation governing “the jurisdiction and powers of all courts except the Supreme Court,” it was further stated that the Supreme Court was specifically excluded from this provision.
The Constitution grants the Supreme Court original jurisdiction, advisory, review, and appellate jurisdiction (Articles 185 to 212). (Article 184). According to Article 184(3) of the Bill, which specifies how to invoke the Court’s original jurisdiction as well as how to file an appeal, this is where the Bill’s main emphasis lies.
While keeping in mind that such revisions cannot be made under “an ordinary law as the Constitution is a higher law – father of laws,” it questioned whether such a goal could be reached without changing the provisions of pertinent Articles of the Constitution.
A constitution is a manifestation of fundamental principles, a higher law, and a law above all other laws, not an ordinary law, according to the letter’s conclusion.