Practice & Procedure

RECENT moves by the government leave no doubt that the judiciary is facing one of the most serious onslaughts in its history. Although attempts to tame the courts have been afoot for a while, as seen by the letter written by six judges of the Islamabad High Court, these have only met with mixed success. Various courts in the country have continued to pass strict observations in cases of enforced disappearances, granted bail to persons that the state is unwilling to release, and zeroed in on the phenomenon of audio leaks. Most significantly, a 13-member ben­ch of the Supreme Court denied the government its extra reserved seats in parliament.
Faced with a judiciary refusing to declare total submission, the government first atte­m­­­pted to pass a constitutional amendment proposing widespread changes to the structure of the judiciary. Having failed to achi­eve that for the time being, the president promulgated the Supreme Court (Prac­tice and Procedure) Amendment Ordinance, 2024.
The contents of the proposed constitutional amendment are now well known: all the significant constitutional powers of the Supreme Court would stand transferred to a federal constitutional court (FCC), which would effectively be handpicked by the government. Judges of the high courts would face being transferred to another court without their consent. The powers of the high courts in matters related to laws in relation to national security would stand eliminated. The government would also have the power to bypass the senior most judge in appointing the chief justice.
Now, the ordinance issued by the president demonstrates that the government remains undeterred. Through the ordinance, the government has changed the composition of the committee that forms benches and fixes cases under the original Supreme Court (Practice and Procedure) Act, 2023. The committee originally consisted of the chief justice and two senior-most judges of the court. Now it will consist of the chief justice, the next most senior judge, and a judge picked by the chief justice.
The promulgation of the ordinance is problematic in several respects. For one, the Constitution does not envisage the president as a lawmaker except in exceptional circumstances when parliament cannot be summoned. No exceptional circumstances seem apparent given that the original committee was functional and available.
For another, it seems to be yet another attempt to interfere in the functioning of the judiciary. In recent weeks, the chief justice has found himself out-voted on matters that are important to the government’s ability to pass the constitutional amendment. In particular, the chief justice unsuccessfully attempted to fix a review petition related to the reserved seats verdict and the Article 63A verdict (related to floor crossing). In case either of these review cases is successful, the government’s ability to pass a constitutional amendment would greatly increase (either through reserved seats, or defections).
Instead of respecting the Supreme Court and the committee, the government decided to modify the committee to strengthen the chief justice so that it could change outcomes for itself. It is a dangerous game for the government to contract and expand the powers of the chief justice at will depending only on its preferred temporary outcomes.
Unfortunately, instead of sticking to the original committee, within hours the chief justice changed the formation of the committee by skipping the third and fourth most senior judges of the court. The composition of the committee is particularly important at this time because if the government can successfully pass the constitutional amendment, then any challenge to the amendment filed in the Supre-
me Court would be subject to the decision of this committee as to whether it is heard, when, and by whom. In effect, the chief justice would now control this process.
Add to this the fact that, according to an official press release of the Supreme Court, the government already made its interest in extending the tenure of the chief justice clear several months ago. The clear intent is, therefore, to ensure that the chief justice, who himself potentially stands to be one of the intended beneficiaries of this whole exercise (in the form of an extended tenure at the FCC), can control any challenge to the proposed amendment.
Last year, when the government was in no mood to implement the Supreme Court’s decision related to elections in Punjab and KP, it brought in the Practice and Procedure Act to thwart the chief justice. This year, when it is in no mood to implement the reserved seats case, it has brought in the ordinance to retain the chief justice’s control.
Behind all of the government’s claims, there is only one real aim: subjugating the Supreme Court.
The writer is a Lahore-based lawyer.
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Published in Dawn, September 24th, 2024