In an effort to address concerns about the legality of the bill, President Arif Alvi sent it back on Saturday, requesting a reevaluation.
Citing Article 75 of the Constitution, President Alvi sent the Supreme Court (Practice and Procedure) Bill, 2023 back to parliament for review, noting that the bill appears to go beyond the scope of parliament and could be challenged as a form of deceptive legislation.
During an escalating political and constitutional crisis in the country over elections in Punjab and Khyber Pakhtunkhwa, the bill was approved by both houses of parliament last month and sent to the president for his consent.
Since Alvi refused to sign the bill, the government is likely to pass the legislation in a joint parliamentary session.
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 expressed his belief that it was appropriate and prudent to send the legislation back for review to ensure its constitutionality is upheld (if it is challenged in court).
After thorough consideration, Alvi identified several factors that need to be addressed.
According to Article 191 of the Constitution, which allows the supreme court to formulate rules governing its practice and procedure, President Alvi noted that the SC Rules 1980 had been “properly validated and adopted by the Constitution.”
The letter mentioned that “these long-standing rules have been consistently followed since 1980 — any changes may be tantamount to meddling with the court’s internal workings, autonomy, and independence.”
The president also highlighted the importance of reviewing the separation of powers.
The country’s Constitution is founded on the concept of the trichotomy of power, which refers to the three branches of the State, each with their respective duties, authorities, and powers as defined by the Constitution.
Article 67 grants parliament the power to “make rules for regulating its procedure and the conduct of its business,” as noted by Alvi. Meanwhile, Article 191 grants the Supreme Court the power to “make rules regulating the practice and procedure of the Court.”
Articles 67 and 191 complement each other, recognizing the autonomy and independence of both institutions, provided that neither interferes with the other’s domain, as stated in the letter.
The president also pointed out that the Supreme Court is an independent institution, in line with the vision of Pakistan’s founding fathers, who asserted that the “independence of the judiciary shall be fully ensured” in their country.
To achieve this objective, Article 191 was introduced, excluding the Supreme Court from the Parliament’s legislative authority, according to the letter.
The letter further emphasized that the Constitution itself provides the parliament with the power to enact legislation.
Article 70, as outlined in the Fourth Schedule of the Constitution, relates to the “introduction and passing of Bills” concerning any matter in the Federal Legislative List.
Entry 55 of Part I of the Fourth Schedule grants the Parliament the power to enact legislation concerning “the jurisdiction and powers of all courts, excluding the Supreme Court,” explicitly excluding the Supreme Court from this provision.
The letter stated, “The Constitution grants the Supreme Court original jurisdiction, advisory jurisdiction (Articles 185 to 212), review jurisdiction (Article 186), and appellate jurisdiction (Articles 185 to 212) (Article 184). The Bill’s focus is on Article 184(3), which pertains to the Court’s original jurisdiction and outlines how to invoke it and the rights to appeal.”
While considering that such changes cannot be made under “ordinary law as the Constitution is a higher law – the supreme law,” the letter questioned whether such an objective could be achieved without amending the relevant Articles of the Constitution.
The letter concluded, “A Constitution is not an ordinary law but a representation of fundamental principles, higher law, and the supreme law above all other laws.”
