The corridors of Pakistan’s legal landscape have been rattled by the controversial passage of the Supreme Court (Practice and Procedure) Act, 2023. This legislative endeavor, which traversed a tumultuous path through Parliament, was on the brink of cementing its position as a new Act of Parliament. However, the narrative took an abrupt turn when the gavel of the Supreme Court resonated, asserting its stance on the matter. On the 13th of April, 2023, an 8-member bench of the Supreme Court issued an anticipatory injunction, effectively rendering the Act dormant upon its potential enactment. Since that defining moment, little substantive headway has been made, leaving the issue languishing in the realm of uncertainty.
Before embarking on the labyrinthine path of constitutional analysis, it is imperative to scrutinize the salient components of this new law. The Act’s Preamble casts a spotlight on key constitutional articles—Articles 4, 10-A, and 25—which encompass rights such as a fair trial, due process, and protection against discrimination. This legislative measure seeks to operationalize these rights by reconfiguring the procedures employed within the Supreme Court, largely entrenched in the Supreme Court Rules of 1980.
Crucial to the discourse is Article 191 of the Constitution, which stipulates:
“Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.”
This grants the Supreme Court the prerogative to devise its own rules while acknowledging their subservience to parliamentary enactments. In essence, legislation promulgated by Parliament can potentially supersede rules framed by the Supreme Court. Clarification can be derived from Order XI of the Supreme Court Rules, 1980, which emphasizes:
“…Save as otherwise provided by law or by these rules…”
The introduction of the new Act squarely pertains to this constitutional dynamic. It intends to overhaul the prevalent practice of constituting benches within the Supreme Court, which has historically rested with the Chief Justice (CJ). The Act posits the creation of a committee—comprising the CJ and the two most senior judges—to wield the authority of bench constitution. This change is designed to eradicate the notion of certain judges being favored in cases involving specific personalities. Moreover, the measure seeks to dilute the concentration of power, ensuring that pivotal decisions are not unilaterally dictated by the CJ but emerge from collaborative deliberations.
The annals of Pakistan’s legal history have witnessed bouts of intense judicial activism, frequently invoking Article 184(3) of the Constitution—pertaining to the Supreme Court’s original jurisdiction—in a manner that some view as frivolous. Lamentably, there existed no concrete mechanisms to channel or regulate this power, leading to perceptions of judicial activism often influenced by political inclinations.
Under the aegis of the new Act, a significant stride has been taken to remedy this situation. A proposed committee would collectively decide whether matters are suitable for adjudication under Article 184(3), marking a significant stride towards genuine judicial independence. Skeptics, however, question whether this practice encroaches upon the right to a fair trial, as committee members would seemingly indicate their inclinations before adjudicating. This argument, while compelling, can be scrutinized by observing that the Act mandates the committee to issue provisional rulings. Furthermore, this mirrors existing practices—when judges express their opinions to the CJ on the matter’s viability for suo motu notice—yet still participate in subsequent hearings.
Diving into the Act’s contours, a new avenue of appeal has been introduced for decisions made under Article 184(3). The crux of the issue revolves around whether Parliament possesses the authority to enact such a law or if it necessitates a constitutional amendment, which demands a two-thirds majority vote. The Federal Legislative List’s Entry Number 55, which confers the jurisdiction and powers to all courts except the Supreme Court, emerges as a key player in this debate. It bestows Parliament with the capacity to legislate on the jurisdiction of courts but restricts expansion of the Supreme Court’s powers, unless expressly provided by the Constitution. Proponents of this new appellate avenue point to Article 175(2) as it empowers Parliament to confer jurisdiction upon the Supreme Court, satisfying Entry Number 55. They bolster this position by citing parallel legislative instances, such as the Land Acquisition Act, 1894, and the Election Act, 2017.
However, a nuance arises when considering that the Act extends an appeal route against Supreme Court decisions themselves. This distinct facet leads to the contention that a constitutional amendment is needed to institute such a right. Article 175(2) may enable an appellate route against lower court decisions, but it lacks the mandate to fabricate an avenue to appeal the Supreme Court’s own decisions.
More than two months have elapsed since the Supreme Court handed down the injunctive order against the Practice and Procedure Act, 2023. A once-promising legislation, championed by the majority of Parliament, now teeters as a paper remnant, rendered impotent with a flick of the pen. Meanwhile, legacy practices, the very ones the Act intended to reform, continue unabated. Critics may berate the law for hasty drafting, but they often sidestep the constitution of the 8-member bench or the swift issuance of the injunctive order.
Scrutinizing this order, one detects a defensive undertone, as if the judges harbor a degree of vexation towards the new law. A recognized principle mandates that when a statute’s constitutionality is in question, the court must endeavor to construe it favorably, harmonizing it with pertinent constitutional provisions. Regrettably, this approach seems conspicuously absent. Instead, the court’s perspective appears circumscribed, viewing the law through a lens of rigid skepticism, almost interpreting it as an attempt to meddle with judicial autonomy. Notably, the Act doesn’t pose a direct challenge to the Supreme Court’s authority, power, or autonomy. Rather, it seeks to democratize decision-making within the apex court, curbing the undue concentration of power in the CJ’s hands.
The order’s tenor frequently queries legislative competence, particularly under Article 191. While the text of this article appears unambiguous, critics maintain that a broader, living tree approach should guide interpretation. They argue that the spirit of the Constitution envisions an independent judiciary untouched by legislative or executive interference. This perspective is undeniably valid, yet certain constitutional clauses empower Parliament to formulate and amend rules governing Supreme Court procedures and practices.
Interpreting such intricate matters of constitutionality has ignited a robust debate about the method of interpretation to be adopted. Recent instances reveal a divergence between the literal and living tree approaches, fostering an environment of uncertainty. Hence, the question arises whether the Supreme Court will once again embrace the literal approach in interpreting Article 191, ultimately ruling that the term ‘Supreme Court’ in Article 184(3) encompasses all judges. This could potentially diminish the CJ’s unilateral authority to wield constitutional powers.
The aftermath of the injunctive order has ushered in an atmosphere of chaos and confusion, impacting proceedings in other cases and disrupting the judicial process. As Justice Isa insightfully notes, until the Practice and Procedure Act is thoroughly addressed, no hearings or benches should convene, particularly for petitions under Article 184(3). Such interim orders, while offering momentary remedies to intricate constitutional issues, hinder court efficiency and challenge the legitimacy of elected representatives.
In the grand tapestry of this legal drama, clarity remains elusive. As Pakistan navigates this constitutional quagmire, legal minds, jurists, and citizens alike await a comprehensive resolution. The way forward demands an unwavering commitment to democratic values, the sanctity of the rule of law, and a balanced relationship between the branches of government. The ultimate hope is for harmony and coherence to emerge from this complex legal debate, charting a course that upholds the core principles of Pakistan’s democratic foundation.