Challenging the Supreme Court Practice And Procedure Act, 2023

Challenging the Supreme Court Practice And Procedure Act, 2023: Assessing Constitutionality, Separation of Powers and Judicial Independence

A heated debate has been going on within the legal community and amongst political parties and legal analysts over the legality of the recently enacted law entitled the Supreme Court (Practice and Procedure) Act, 2023. There is a huge difference of opinion amongst various stakeholders regarding whether the enactment is within constitutional parameters, with some asserting that the Act enhances the system of checks and balances while others contending that the Act is an encroachment over the independence of the judiciary.

As the primary author of this article, I take full responsibility for its contents and conclusions. I would also like to acknowledge the contribution of Advocate Izza Rizvi whose input has played a valuable role in refining certain aspects of this research.

In this article, I will shed light on the Act as an advocate and attempt to stick to the question of law that has arisen regarding the legality of this law rather than delving into the political debate going on in print, electronic and social media. First, I will highlight the issues concerning the legality of this Act, followed by the legal position on each issue and conclude the discussion in light of the legal standing extracted from the discourse.

Issues with the Legality of the Act

  1. Can Parliament regulate the business of the Supreme Court through legislation?
  2. Can the Act have an overriding effect on the judgments passed by the apex court?
  3. Can the power of suo motu be devolved from the Chief Justice of Pakistan to a Committee through this Act of Parliament?
  4. Can the Supreme Court declare the Act void and ultra vires to the Constitution?

Issue #1

According to Article 191 of the Constitution of Pakistan, 1973:

“Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court…”

According to Entry No.55 of the Federal Legislative List, provided under the Fourth Schedule of the Constitution of Pakistan, 1973:

Jurisdiction and powers of all courts, except the Supreme Court, concerning any of the matters in this List and, to such extent as is expressly authorized by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers…
[Emphasis added]

The word ‘except’ shows that Parliament cannot make any law regarding the jurisdiction and powers of the Supreme Court, including the enlargement of jurisdiction and the conferring of supplemental powers.

However, Section 4 of the Act in question is giving the Supreme Court power to exercise appellate jurisdiction against the final order of the bench in suo motu cases.

The determination of the power to legislate is based on the theory of ‘separation of powers’ which is the basic constitutional structure in Pakistan under the “basic structure doctrine”. Justice Muneeb Akhtar has defined the concept in paragraph 16 of SMC 04 2021 in the following words:

“The constitutional doctrine of separation of powers between the three organs of the State, i.e., the legislative, executive, and judicial branches is not expressly set out in our Constitution but it is by now well established that it is an important and fundamental aspect of constitutional law. The doctrine infuses and informs constitutional structures, is indispensable for a proper understanding of the organs of governance, and is vital for a proper delineation of their functions and interactions, whether in apposition or opposition. In our jurisprudence, the doctrine is usually referred to as the trichotomy of powers…

In the same paragraph, Justice Muneeb Akhtar has given reference to the case of Jurist Foundation v. the Federation of Pakistan where the court declared that,

“…the separation of powers is the fundamental principle of our constitutional construct…”

Furthermore, in paragraph 34 of PLD 2010 SC 265 (Dr. Mobashar Hassan v. the Federation of Pakistan) the court has declared the following:

“It is also to be borne in mind that Constitution envisages the trichotomy of powers amongst three organs of the State, namely the legislature, executive, and the judiciary. The legislature is assigned the task of law-making; the executive executes such laws and the judiciary interprets the laws. None of the organs of the State can encroach upon the field of the others.”

Based on the abovementioned arguments, it is pertinent that the constitutional system prevailing in Pakistan be based on the theory of ‘separation of powers’, with each organ of the state having its own jurisdiction and without any organ encroaching upon the powers of others.

The Preamble to the Constitution also states that,

“…the independence of the judiciary shall be fully secured…

Furthermore, Justice Muneeb Akhtar under paragraph 17 of SMC 4/2021 discusses the concept of the independence of judiciary in the following words:

However, the distinction between these branches on the one hand, and the judicial branch on the other, is much more rigid and strictly enforced. This is so, among other reasons, to ensure and protect the vital constitutional principles of the independence of the judiciary and access to justice, which are now regarded as fundamental rights in and of themselves. The intermingling and overlapping of executive and legislative powers are thus to be contrasted with their rigid separateness from the judicial power.”

In paragraph 21 of the same case, Justice Muneeb Akhtar emphasizes that judges who are part of judicial institutions be separate from the other two branches of the state and also gives reference to paragraph 13 of the case of Wilson v. Minister of Aboriginal and Islanders Affairs:

The separation of the judiciary is no mere theoretical construct. Blackstone rightly perceived that liberty is not secured merely by the creation of separate institutions, some judicial and some political, but also by separating the judges who constitute the judicial institutions from those who perform executive and legislative functions.”

The aforementioned case-law focuses on the independence of judiciary from the other two branches of the state without them intermingling.

Issue #2

Section 8 of the Act has an overriding effect over not only any “rules” but also any judgment of any court, including this court itself. This approach is prima facie a serious encroachment upon, interference with, and intrusion into the independence of the judiciary. It also goes against the concept of stare decisis prevalent in common law countries.

Issue #3

The exercise of suo motu powers by the Chief Justice of Pakistan has been a longtime practice in Pakistan. Justice Muneeb Akhtar, in para 36 of SMC 4/2021 has explored the question of who, under article 184(3) of the Constitution, can exercise the power of suo motu and whether it can be any one (or more) of the judges or the Chief Justice alone. He answered the question in the following manner:

“It is of course not in doubt that SMC 4/2021 29 the Chief Justice can invoke the jurisdiction Suo motu… while there have been some examples where the jurisdiction was invoked Suo motu at the instance of an individual Judge other than the Chief Justice, there is not any consistent or sustained practice in this regard. Now, the learned Attorney General, at the conclusion of his submissions, drew attention to the position concerning the Supreme Court of India. There, applications for the enforcement of fundamental rights under Article 32 of the Indian Constitution are dealt with in Order 38 of their Supreme Court Rules, 2013… This Rule provides in its sub-rule (1) as follows:

A Public Interest Litigation Petition may commence in any of the following manners:

(a) as a suo motu petition in pursuance of the order of the Chief Justice or Judge of the Court.

(b) in pursuance of an order of the Chief Justice or a Judge nominated by the Chief Justice on a letter or representation.

(c) by an order of the Court to treat a petition as a Public Interest Litigation Petition.

(d) by the presentation of a petition in the Court.

Thus, in India, it seems that, as expressly provided in the rules themselves, the answer to the possibility now under consideration would be that the jurisdiction can be invoked suo motu by any of the Judges of the institution.”

Furthermore, with regard to the practice of judiciary in Pakistan, the Chief Justice has invoked suo motu powers in 97.39% of suo motu cases overall. Justice Muneeb Akhtar has referred to this data in para 47 of SMC 2021 in the following words:

When the data for the HMC and SMC cases are combined (giving a total of 1271 cases), the position becomes even clearer. The Chief Justice alone invoked the jurisdiction suo motu in 1186 cases (1028 plus 158), i.e., 93.3% of the total. The cases where the jurisdiction was so invoked by a Bench headed by the Chief Justice constitute 4.09% of the total. Thus, in 97.39% of the cases, the Suo motu jurisdiction was invoked by the Chief Justice either directly or as a matter of law. The cases where this was done by a Bench not headed by the Chief Justice constituted a miniscule 1.5% and those where this was done by individual Judges were a vanishingly small 0.6%. (The balance of 0.5% represents the cases where the matter was simply referred to the Chief Justice by the Benches concerned.) These figures speak for themselves. The pathway adopted in this common law jurisdiction is clear. The settled practice is that the Suo motu jurisdiction is to be invoked by the Chief Justice alone and not by any other Judge as such.”

Issue #4

In light of all of the abovementioned arguments, the Supreme Court may exercise the power of judicial review to declare the Act void and ultra vires to the Constitution.

The definition of judicial review according to the 9th Edition of Black’s Law Dictionary is provided hereunder:

A court’s power to review the action of other branches or levels of government; esp. the court’s power to invalidate legislative and executive actions as being unconstitutional.

Moreover, according to Dworkin‘s theory of judicial activism,

The program of judicial activism holds that the Court should void the decisions of the other branches of Govt. whenever they offend the judge’s own sense of principle required by the Constitution.”

– [Extract from page No.504 of The Journal of Politics, Vol 46 No. 2 Published by the University of Chicago].

In the landmark judgment of Marbury v. Madison 1803, the US Supreme Court also set a binding precedent for the court’s power of judicial review. According to Chief Justice Marshall’s statement of principle towards the end of his opinion:

“…a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”

Pursuant to paragraph 78 of Dr. Mubashir Hasan v. Federation of Pakistan (PLD 2010 SC 265), the Supreme Court of Pakistan has also emphasized the need for judicial review in extraordinary circumstances in the following words:

“…However, in respect of criminal cases, this issue has to be approached differently than the matters relating to civil disputes, payment of taxes, etc. The legislative authority, ordinarily is not required to enter into the domain of the judiciary. It has been noted, time and again, that under the scheme of the Constitution, the judiciary has an independent role, amongst three organs of the State, as it has been held in Mahmood Khan Achakzai’s case (PLD 1997 SC 426), Mehram Ali’s case (PLD 1998 SC 1445), Liaquat Hussain’s case (PLD 1999 SC 504) and Syed Zafar Ali Shah’s case (PLD 2000 SC 869).”

Considering all of the abovementioned issues and their legal standing, it is submitted that the Act in question is an encroachment upon the independence of the judiciary as enshrined in the Preamble to the Constitution and is against the trichotomy of powers defined through the basic structure doctrine. Therefore, the Act should be considered ultra vires to the Constitution and the Supreme Court being the custodian of the Constitution should declare it void.

The views expressed in this article are those of the author and do not necessarily represent the views of or any other organization with which he might be associated.

Zahid Hussain

Author: Zahid Hussain

The writer is a human rights lawyer and works as a community lawyer at the Legal Aid Society for ADR and Religious Minorities project.