Citing past precedents, the six lawyers have contended before the Supreme Court to reconsider its view on taking cases against draft legislations, noting that this will not be the first time that a proposed legislation has been challenged and taken up by the court. They argued that if this amendment becomes law, it will alter the judicial structure and take powers of reviewing constitutional matters away from the top court.
The lawyers, who are members of the Pakistan Bar Council (PBC) - the apex body of lawyers in the country - said that the top court has previously entertained cases on draft laws such as the Hasba Bill and the Practice and Procedure Bill. The lawyers submitted on Tuesday their appeal against objections raised by the office of the Supreme Court Registrar. On September 18, the top court's Registrar's Office returned their constitutional petition after raising several objections. The six lawyers are led by former Supreme Court Bar Association of Pakistan (SCBAP) president Abid Shahid Zuberi and include a potential candidate for the SCBAP president post, Munir Kakar. Other cohort members include Shahab Sarki, Chaudhary Ishtiaq Ahmed Khan, Tahir Faraz Abbasi and Shafqat Mehmood Chauhan.
It is pertinent to mention here that a three-judge bench of the Supreme Court headed by Chief Justice Qazi Faez Isa and comprising Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan, is expected to take up a petition against the draft law on Wednesday, October 17. However, it is not clear whether the bench will also take up the appeal against objections.
Past precedents
In their appeal, the six lawyers contended that what they had asked for was not something extraordinary.
"It is respectfully submitted that the Registrar has failed to appreciate that this is not the first instance where a legislative bill has been challenged before its enactment," the appellants argued in their appeal.
The appeal contended that in the Hasba Bill case, a nine-member bench of the top court had declared various clauses of the draft bill as contrary to the Constitution and had directed the then-North West Frontier Province (NWFP) Governor not assent to the controversial law.
Similarly, the appeal further contended that the Supreme Court (Practice and Procedure) Bill was challenged and restrained from being enacted before it could be passed into law.
"These precedents establish that this court is competent to entertain challenges to bills at the pre-enactment stage where necessary to safeguard constitutional principles or prevent potential legal consequences," the PBC's six members contended.
"Therefore, for the reasons outlined above, the returned Constitution Petition falls squarely within the scope of Article 184(3) of the Constitution of the Islamic Republic of Pakistan, as it raises significant questions of public importance."
They reiterated justifiable concerns over the proposed bill that it is ultra vires to the Constitution's basic features, including the independence of the judiciary, the separation of powers, and the protection of fundamental rights, the appeal further contended.
"The proposed bill puts forth proposed amendments to the Constitution that would transfer the vested powers of the Supreme Court of Pakistan and the high courts of Pakistan, as granted by the Constitution, to the executive and entirely annihilate the principles of independence of judiciary and separation of powers," the application argued.
"Even otherwise, it is submitted that urgency of this civil miscellaneous appeal arises from the fact that, once the proposed bill is enacted, the Supreme Court's jurisdiction to hear and adjudicate upon this matter would be ousted."
This would, the appeal contended, effectively bar this court from reviewing the legislation and considering any constitutional violations arising from it.
"Therefore, to preserve the judicial review mechanism and prevent a deprivation of fundamental rights, immediate intervention by this court is sought at the bill stage, prior to its conversion into an Act of Parliament."
They further argued that their petition does not raise any hypothetical questions regarding the proposed bill.
"The existence and content of the proposed bill have been explicitly acknowledged and discussed, and are not in dispute," they argued.
"The concerns raised are substantive and directly related to the independence of the judiciary and the democratic framework of the country."
Hence, they urged that any objections suggesting that these concerns are hypothetical were unfounded, as they address real and pressing constitutional matters.
"The questions raised within this civil miscellaneous appeal and the constitution petition are of paramount importance, as the proposed bill seeks to alter the salient features and basic structure of the Constitution."
They further argued that the proposed constitutional amendments aim to strip Pakistan's superior and high courts of their powers, transferring them to a newly established Federal Constitutional Court and simultaneously blurring the separation of powers between the three branches of the state — the judiciary, executive, and legislature.
The top court was urged to set aside the objections raised by the Registrar's Office and entertain their petition.