- Points out SC empowered by Article 191 to make rules for its practice and procedure
- Return of SC bill by President Alvi ‘most unfortunate’: PM Shehbaz
ISLAMABAD: President Dr Arif Alvi on Saturday sent back the Supreme Court (Practice and Procedure) Bill, 2023 to the National Assembly for reconsideration, citing concerns that “it goes beyond the parliament’s competence and could be deemed as a colourable legislation.”
The Senate passed the bill on March 30 aiming to strip the chief justice of the power to take suo motu notices individually. The bill was initially approved by the federal cabinet on March 28 and later passed by the National Assembly with a few amendments.
The president pointed out that the Supreme Court is empowered by Article 191 of the Constitution to make rules regarding its practice and procedure, and the Supreme Court Rules 1980 have been in force since their adoption and validation by the Constitution.
Any changes to these rules could interfere with the Court’s autonomy and independence.
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
The president further highlighted that Articles 67 and 191 recognize the autonomy and independence of the Parliament and the Supreme Court respectively, barring interference in each other’s domain.
i.Article 191 of the Constitution empowers the Supreme Court ‘to make rules regulating the practice and procedure of the Court’. Under such enabling provisions of the Constitution, the Supreme Court Rules 1980 have been made and in force duly validated –
— The President of Pakistan (@PresOfPakistan) April 8, 2023
Additionally, the bill’s competence to be introduced by the Parliament stems from the Constitution, particularly Article 70, Article 142-A, and Entry 55 of Part I of the Fourth Schedule. These provisions exclude the Supreme Court from the Parliament’s law-making authority.
and can be assailed as a colourable legislation. The President said that he thought it fit and proper to return the Bill, in accordance with the Constitution, with the request for reconsideration in order to meet the scrutiny about its validity (if assailed in the Court of Law).
— The President of Pakistan (@PresOfPakistan) April 8, 2023
The bill primarily focuses on the original jurisdiction of the Court, which Article 184(3) addresses, but the President has observed that such a purpose cannot be achieved without amending the relevant Articles of the Constitution.
The president noted that “Under such enabling provisions of the Constitution, the Supreme Court Rules 1980 have been made and in force duly validated – and adopted by the Constitution itself.” This indicates that these rules have been validated and adopted by the Constitution itself.
He further stated that “these time-tested Rules are being followed ever since the year 1980 — any tinkering with the same may tantamount to interference with the internal working of the Court, its autonomy and independence.”
He went on to say that the Constitution was founded on the concept of trichotomy of power — three pillars of the state whose domain of power, authority and functions were defined and delineated by the Constitution itself.
“The parliament has also been given the power under Article 67 that states — subject to the Constitution, a house may make rules for regulating its procedure and the conduct of its business.”
“Article 191 states that subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court”.
He explained that Articles 67 & 191 were akin to each other and recognise the autonomy and independence of each other respectively — barring interference of one into the other’s domain.
The head of the state further said the top court is an independent institution as “visualised by the founding fathers that in the state of Pakistan independence of judiciary shall be fully secured”.
“With such an objective in view, Article 191 was incorporated and the Supreme Court was kept out of the law-making authority of the parliament,” he highlighted.
He said the competence of the parliament to make laws stemmed from the Constitution itself.
The president highlighted that “Article 70 relates to ‘introduction and passing of Bills’ with respect to any matter in the Federal Legislative List — enumerated in the Fourth Schedule of the Constitution.”
He further explained that “followed and further affirmed are the provisions of Article 142(a) that Parliament can — make laws ‘with respect to any matter in the Federal Legislative List’.”
However, the president noted that “Entry 55 of Part I of Fourth Schedule while empowering the parliament to make laws in respect of ‘jurisdiction and powers of all courts except the Supreme Court’ especially excluded the Supreme Court.”
The president concluded his observation by questioning the feasibility of the idea and asked, “Can such a purpose be achieved without amending the provisions of relevant Articles of the Constitution?”
He further emphasised that the Constitution is not an ordinary law but an embodiment of fundamental principles, higher law, and law above other laws.
Return of SC bill by President Alvi ‘most unfortunate’: PM Shehbaz
Prime Minister Shehbaz Sharif said the return of the Supreme Court bill duly passed by the Parliament was most unfortunate.
President Alvi returning the Supreme Court Bill duly passed by Parliament is most unfortunate. Through his conduct, he has belittled the august Office by acting as a worker of the PTI, one who is beholden to Imran Niazi more than the Constitution & demands of his Office.
— Shehbaz Sharif (@CMShehbaz) April 8, 2023
In a tweet on social media platform Twitter, he said, “President Alvi returning the Supreme Court Bill duly passed by Parliament is ‘most unfortunate’. Through his conduct, he has belittled the august Office by acting as a ‘worker of the PTI’, one who is ‘beholden’ to Imran Niazi more than the Constitution & demands of his Office.”
Alvi following party policy: Sherry Rehman
Reacting to the president’s move, Climate Change Minister Senator Sherry Rehman criticised Alvi for following the PTI’s policy.
In a tweet today, she said, “By returning the Supreme Court bill (to the parliament) for review, President Arif Alvi has proved that he is not the country’s president but the PTI’s secretary general even now.”
صدر عارف علوی نے سپریم کورٹ بل نظرثانی کیلئے واپس بھیج کر ثابت کر دیا وہ ملک کے صدر نہیں بلکہ ابھی بھی تحریک انصاف کے سیکرٹری جنرل ہیں۔ انہوں نے پارلیمنٹ کے ہر فیصلے کو تحریک انصاف کی نظر سے دیکھا ہے۔ بل موصول ہونے سے پہلے ہی وہ ایک انٹرویو میں اس پر اپنا موقف دے چکے تھے۔ 1/2
— SenatorSherryRehman (@sherryrehman) April 8, 2023
Saying that Alvi had looked at “parliament’s every decision with the perspective of the PTI”, Rehman highlighted that he had already stated his stance on the matter in an interview before even receiving the said bill.
لحاضہ وہ اپنی پارٹی پالیسی کی پیروی کر رہے ہیں، صدر کے آئینی عہدے کی نہیں۔صدر کہہ رہے کہ یہ بل پارلیمنٹ کے اختیار سے باہر ہے؟ساڑھے تین سال وہ صدر ہائوس کو آرڈیننس فیکٹری کی طرح چلاتے رہے، وہ پارلیمنٹ کے اختیارات سے کیسے واقف ہو سکتے ہیں۔ صدر پارلیمنٹ کو قانون سازی نا سکھائیں۔ 2/2
— SenatorSherryRehman (@sherryrehman) April 8, 2023
She added, “He is following his party’s policy, not his constitutional role as the president.”
“The president is saying that this bill is outside the parliament’s authority? He kept running the President House like an ordinance factory for three and a half years — how can he be aware of the parliament’s powers? President, do not teach the parliament legislation,” she said.
Meanwhile, PTI leader Fawad Chaudhry called on the coalition government to “take a breath [and] think” instead of trying to amend laws upon a “few people’s wishes”.
حکومت قانون سازی کو چند لوگوں کی خواہش کے تابع نہ کرے، سپریم کورٹ کے رولز میں ترامیم کی کوششش کے بعد اب الیکشن ایکٹ میں ترمیم کے ذریعے صدر مملکت کے اختیارات میں کمی احمقانہ قانون سازی ہے۔ آپ سانس لیں سوچیں اور اپنی سیاست میں ترمیم کریں ایسی جلدی میں ترامیم کوئ نہیں مانے گا
— Ch Fawad Hussain (@fawadchaudhry) April 8, 2023
“The government should not make legislation subordinate to a few people’s wishes. After attempts to amend the Supreme Court rules, decreasing the president’s powers by amending the Elections Act (2017) is foolish legislation.”
Addressing the government, he said, “You should take a breath [to] think and make amendments in your politics. No one will accept amendments [made] in such a hurry.”
‘SC authority cannot be changed by any routine legislation’
Barrister Asad Rahim Khan, a columnist and legal commentator, told DawnNewsTV that the issues with the bill were very clear. “The Supreme Court’s authority cannot be [changed] by any routine legislation,” he said. “But the parliamentarians overrode that believing that this law would be correct.”
Barrister Khan also questioned the timing of the legislation, which he said would be endangering the independence of the judiciary and the separation of powers. “Unless the Constitution is amended, such wide-ranging changes cannot be introduced to change the chief justice’s and the Supreme Court’s powers.
“The president did the right thing.”
When asked what options the government has after the bill was returned, Barrister Khan said that the parliamentarians will now discuss the bill in a joint session, and if they send it back to the president for his assent, he has 10 days to sign it. [And if he does not sign it] in the 10-day period, the bill will be deemed to have passed, he added.
