Sept 21, 2024
By Rehan Piracha and Ahmed Saeed
LAHORE:
The Supreme Court (Practice and Procedure) Amendment Ordinance 2024, promulgated by President Asif Ali Zardari in September 20, has sparked mixed reactions within the legal community. While the Supreme Court Bar Association (SCBA) has expressed disappointment over the changes, legal expert Yasin Azad argues that the amendments address the imbalances faced by the chief justice of Pakistan.
On September 20, President Asif Ali Zardari gave his assent to the Supreme Court (Practice and Procedure) Amendment Ordinance 2024, allowing the Chief Justice of Pakistan (CJP) to pick any SC judge as a third member of a committee that decides the formation of benches for hearing.
Following the promulgation of the ordinance, CJP Qazi Faez Isa changed the composition of the three-judge committee by substituting Justice Amin-ud-Din Khan in place of Justice Munib Akhtar.
Presidential Ordinance has repealed SC procedure law: SCBA
The Supreme Court Bar Association (SCBA) has termed the recent promulgation of the presidential ordinance that amended the Supreme Court (Practice and Procedure) Act 2023 as equivalent to repealing the earlier law.
In a statement on September 21, the SCBA expressed its deep remorse and anguish on the promulgation of the presidential ordinance, amending the Supreme Court (Practice and Procedure) Act 2023. “The Ordinance is a clear defiance of the long standing struggle of legal fraternity which culminated in the Act 2023,” reads the senior lawyers’ association statement issued by SCBA President Muhammad Shahzad Shaukat, Secretary Syed Ali Imran and its 26th Executive Committee.
The SCBA took exception to the hasty manner in which the ordinance was promulgated. “ We also express our deep concern at the timing and manner in which this Ordinance has been issued and the fact that it practically amounts to a repeal of Act 2023 which is unacceptable particularly when the said legislation had already been upheld by Supreme Court of Pakistan,” says the statement.
The SCBA holds that the original act served a pivotal role in strengthening the Supreme Court by enhancing access to justice and upholding the fundamental rights enshrined in the Constitution, thereby ensuring a more equitable and transparent judicial process. “In contrast, today’s amendments are detrimental to the Constitution, the independence of the judiciary, and the protection of fundamental rights,” the SCBA further reads.
The SCBA viewed that “sacred institutions like Parliament and Judiciary are on a collision course which is destined to have devastating effects on democracy and supremacy of Constitution, if both sides do not exercise restrain it can derail the whole system”.
The lawyers’ body called upon all relevant stakeholders to uphold the sanctity of the Constitution, the independence of the judiciary, and the fundamental rights of the people of Pakistan.
‘Ordinance corrected the imbalance CJP faced’: Azad
However, veteran lawyer and former President SCBA, Yasin Azad, holds a differing opinion from the SCBA. He said the ordinance came about because, “the CJP was cornered by the two senior judges in the matter of hearing important cases”.
For instance, he explains, the CJP had disagreed with a decision taken during the committee’s July 18 meeting and even wrote a separate note highlighting that the right of review had been provided under the Constitution and such right had to be preferred over the convenience of the judges who were availing leave or vacations.
“The CJP had suggested for early hearing of the review petition in reserved seats case but other two judges on the committee decided to defer it,” he adds.
According to Azad, the government was left with no option but to correct the imbalance that the CJP faced in deciding cases of public importance, such as a review petition. “The ordinance allows him to pick one judge but does not give him absolute power to decide the formation of benches,” he points out.
Azad appreciates the insertion of Section 7A through the amendment ordinance, which states: “Every cause, matter or appeal in the Supreme Court will be heard at its turn based on first in, first out, that is to say, the cases filed first will be heard first. Any bench hearing a case out of its turn will record its reasons for doing so”.
He believes this insertion eliminates the higher judiciary’s discretion to selectively hear matters of public importance – “I can point to numerous petitions we filed in 2022-23 that have yet to be scheduled for a hearing before the Supreme Court.”
Further, the ordinance inserts Section 7B into the Supreme Court procedure law, allowing for the recording and transcription of proceedings in the Supreme Court. “Hearing of every cause, matter or appeal in the Supreme Court will be recorded and transcript thereof duly prepared,” reads Section 7 B.
Such recordings and transcripts will also be made available to the public. It adds that for the purposes of reliance, thereon in any court proceedings, only a certified copy of the transcript against the payment of a fee amounting to Rs50 per page will be used.
According to Azad, this practice is common in the judiciary of many developed countries, including Canada – “The recordings and transcripts will enhance transparency and help minimise omissions during arguments before the court”.
Under the Constitution, the President may promulgate ordinances when the National Assembly or Senate is not in session and if the President is ‘satisfied that circumstances exist which render it necessary to take immediate action.’ The ordinance remains in force for 120 days and it has to be presented before the Senate or National Assembly on its working day following its promulgation.