Pakistan's largest body of lawyers on Saturday joined a growing chorus of voices expressing concerns over Friday's Presidential ordinance, which amended the Practice And Procedure Act 2023, to alter how the three-member bench-fixing committee is constituted, the sequence in how cases are heard and recording verbatim remarks of judges during the hearing to be made available as a transcript.
Farooq Hamid Naek, the vice chairman of the Pakistan Bar Council (PBC), expressed serious concerns over the promulgation of the ordinance by the President, wherein the Supreme Court Practice and Procedure Act, 2023 has been amended and the chief justice was given powers to pick/nominate any Judge of the Supreme Court as the third member of the committee to constitute benches and fix cases before them.
Naek reiterated that it was a longstanding demand of the PBC and the wider legal community that a committee of senior judges should be constituted to decide the constitution of benches and fix of cases, and the Supreme Court Practice and Procedure Act 2023, was the outcome of that struggle of the legal fraternity. He said that the lawyers had welcomed and appreciated when this law was enacted. However, he said that the amendment to the law through an ordinance was a clear defiance of the longstanding struggle of lawyers, noting that the original legislation had already been upheld by the Supreme Court as well.
"Through this ordinance, unilateral and arbitrary power has been given to the Chief Justice of Pakistan in the formation of the bench for hearing matters under Article 184(3) of the Constitution. This ordinance is thus an unjust law and violates the democratic procedure as laid down in the 2023 act for formation of the bench under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023," he said, explaining that the ordinance is supposed to be temporary legislation and only issued when there is an emergent need, and the Parliament is not in session to make the necessary laws.
Naek was of the view that this was a bad law that would prove to be detrimental to the independence of the judiciary and protection of fundamental rights for which Article 184(3) of the Constitution is invoked by an aggrieved person.
He also reiterated his deep concern over the manner in which the constitutional amendments were proposed to be passed by the Parliament earlier in the week, lamenting the secrecy and 'in dead of night,' without consulting the stakeholders. And now, he said, this ordinance had been promulgated by the government without discussing it in the Parliament, which put naught the provision of the Constitution that provides that the state shall exercise its powers through the chosen representatives of the people as well as principles of democracy and sovereignty of Parliament.
He believed the government should have engaged the Pakistan Bar Council on the ordinance before promulgating it, as it had done when sharing a draft of the proposed 26th Constitutional Amendments for their input.
Naek said that the Pakistan Bar Council has always supported and struggled for the supremacy of the Constitution, the rule of law and independence of the judiciary, as enshrined in the Constitution.
He, therefore, called upon the government to place the ordinance before the executive committee of the Pakistan Bar Council to seek their opinion on whether such an ordinance has secured the independence of the judiciary and the sovereignty of the Parliament in legislating laws.
It is pertinent to mention that earlier, the Supreme Court Bar Association had expressed their concern over the promulgation of the ordinance.