The passage by the National Assembly of the Supreme Court Practice and Procedure Bill 2023 may be seen as the first salvo in the conflict between the Supreme Court and Parliament, or rather between two of the three pillars of state, the Judiciary and the Executive. While the question of holding of elections to the Punjab and KP Assemblies within 90 days has gone much higher, to a struggle for which branch of the state is to enjoy supremacy. It should be noted that the Bill attempts to restrict the powers of the Chief Justice, by making them collegial rather than individual. The power of constituting benches, and that of making suo motu references, is presently in the hands of the Chief Justice of Pakistan; the bill places it in the hands of a three-man committee comprising the CJP and the two senior most judges of the court after him. The Bill would not affect benches already constituted, nor suo motu references already made, but it would restrain the CJP from acting with unfettered discretion for the remainder of his term, which ends with his retirement in September.
The legislation comes because the incumbent government feels that it is not getting a fair shake from the judiciary, which it feels inclined to favour PTI chief Imran Khan, ousted as PM in March. The CJP, in one view, brought this legislation on his own head. It all started with his constituting benches that almost always decided in favour of the PTI, but reached a climax with his taking suo motu notice of the Punjab Assembly dissolution, and then deciding in favour of the holding of elections even over the Election Commission’s reluctance, mirrored by the federal government’s.
Parliament is trying to restore a balance, and stop the apparent interference, but the enthusiasm with which politicians themselves took matters to the Judicial arm, especially since the no-confidence vote against the previous government, may have given the Supreme Court ideas. It might now act to strike down the new Supreme Court Act as unconstitutional, but it is also possible that history may repeat itself, and the executive may find allies in the Supreme Court willing to reverse such a striking down. Whatever the way matters unfold, it will be unpleasant, and the Executive will be as much a loser, if not more, as the Judiciary. Only political forces can now escape the destruction ahead, and that is if all political parties put their heads together. However, the PTI has called the others names so long that they are no longer ready to trust it. Until there is a settlement, things will not be pretty.
