An 8 member bench of the Pakistan Supreme Court has stayed the Supreme Court ( Practice and Procedure ) Bill, 2023, which has not yet become law.
There has been a lot of criticism of this interim order by some lawyers, politicians, etc,
In my opinion the order is innovative, but can certainly not be called bizarre, considering the situation prevailing in Pakistan.
When I first heard of the order my initial reaction was that the Court had over reached itself. After all, a bill has no legal efficacy until it becomes a law. and how can something which has no legal efficacy be stayed ? In my judicial career of 20 years ( as a judge in 3 High Courts, Allahabad, Madras, and Delhi, and in the Supreme Court ) I had never heard of such an order. I thought the petition itself was premature, and should have been dismissed forthright as such.
But on deeper thinking I came to the conclusion that extraordinary situations require extraordinary remedies, and therefore the order was correct and justified.
The extraordinary situation in Pakistan is that the PDM Govt is adamant in not holding elections to the Punjab Assembly on 14th May, as directed by the Supreme Court, knowing that it will be routed ( as all opinion polls indicate ). But Article 224(2) of the Pakistan Constitution is very clear. It mandates elections to be held within 90 days of dissolution of the Provincial Assembly. The Punjab Assembly had been dissolved on 18th January, so elections should have been held by 18th April.
But the Election Commission of Pakistan, after earlier fixing Punjab and KP Assembly elections for 30th April, had postponed it for 8th October, obviously under some pressure. The Supreme Court rightly struck down this blatant violation of the Constitution, and since elections could not be held by 18th April as required by Article 224(2), took a pragmatic approach and fixed it for 14th May.
However, soon thereafter the Pakistan Govt led by Prime Minister Shahbaz Sharif said that it rejected the Court verdict, and to thwart holding elections on the date fixed by the Court ( 14th May ) refused to release the funds for this purpose to the ECP by 10th April, as directed by the Court. Instead, the PDM Govt adopted the too clever by half device of referring the matter to Parliament, which in turn has referred it to a select committee. This was obviously diversionary and delaying tactics.
The Govt is also anxious to clip the wings of CJP Bandial, who has stood like a rock in insisting that the Constitution must be followed. The aforementioned bill was obviously brought for this purpose.
In all countries where judges sit on benches ( e.g. in UK, India, Pakistan, etc ) the Chief Justice of the Court, by long standing and well established convention, is the Master of the Roster. In other words, he has the sole prerogative of constituting benches, deciding which judge will sit on which bench, how many members will be on a particular bench, etc..But the aforesaid bill seeks to transfer this power to a committee of senior judges, something unprecedented and unheard of. The motive for introducing this bill was obviously to curb the power of CJP Bandial, who is perceived by PDM leaders as pro-Imran khan, though he is only wanting the Constitution to be followed.
In this extraordinary situation, extraordinary measures are justified.
A criticism is also heard that why has the CJP formed a 8 member bench with these particular judges on it ? To my mind the Chief Justice has chosen judges who strongly believe that the Constitution must be upheld. Why should he include in the bench judges who do not share this belief ? Why should he include judges who do not observe the long standing, well established, convention that judges should only speak through their judgments, and instead act in a bizarre manner by going to Parliament to speak there, or issue a press note criticising the Chief Justice?