The Supreme Court (Practice and Procedure) Act, 2023 was passed in a joint session of Parliament—as President Alvi had refused to give his assent to the Bill—and had been marching towards becoming an Act of Parliament when suddenly the pen, the gavel and the robes stepped in. On the 13th of April, 2023 an 8-member bench of the Supreme Court gave an interim order as an anticipatory injunction to the effect that the Act would be deemed ineffective whenever it came into existence. Since this last order, there has been no substantive progress and the matter remains pending.
Before delving into the constitutional mesh, it is necessary to first peruse the important aspects of the new law. The Preamble to the Act refers to Articles 4, 10-A, and 25 of the Constitution (which cover the right to a fair trial, due process and protection against discrimination) and intends to enforce these rights by changing the procedures being followed in the Supreme Court (enshrined mostly in the Supreme Court Rules, 1980).
Article 191 of the Constitution states the following:
“Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.”
This empowers the Supreme Court to make its own rules but makes them subject to any laws made by Parliament. In other words, the laws made by Parliament will have an overriding effect on the rules made by the Supreme Court. For further clarity, recourse can be sought in Order XI of the Supreme Court Rules, 1980 which starts with the following:
“…Save as otherwise provided by law or by these rules…”
Order XI of the Supreme Court Rules, 1980 empower the Chief Justice (CJ) to constitute benches in every cause, matter and appeal but, as stated above, this will be subject to any laws made by Parliament. The new Act is one such law in this aspect which tends to amend this prevalent practice of the constitution of benches in the Supreme Court. It proposes the formation of a committee—comprising the CJ and 2 seniormost judges of the court—and gives the committee the task to constitute benches. This aims to end the longstanding impression that certain judges get preferred over others in matters which involve certain personalities. Moreover, it aims to ensure that constitutional command is being fulfilled in the sense that it will eradicate the concentration of power in the highest court of the country as important decisions will not be solely taken and imposed by the CJ over fellow judges and the parties.
The country has previously witnessed intense periods of judicial activism where the excessive use of Article 184(3) of the Constitution (the original jurisdiction of the Supreme Court) in the most frivolous and petty matters had become routine. There being no proper way to regulate such power (through laws or Supreme Court Rules), it was always assumed that the robes belonged to the CJ alone, who at times invoked such power to enforce a political sense of justice.
Under the new Act, the proposed committee’s joint prerogative to decide whether a matter is suitable to be entertained under Article 184(3) of the Constitution is a positive step towards actual judicial independence. Those against this argue that it violates the right to a fair trial as the members of the committee would have already disclosed what they had in mind and then proceeded to also adjudicate on the matter. This argument is flawed, first because the Act only expects the committee members to give a tentative ruling and secondly, if we are to talk about the disclosure of mind then we should also view it from the context of the CJ—when he takes suo moto notice or when fellow judges write him a letter to do so, they too are disclosing their minds yet sitting on the bench.
Even if we focus on the text of Article 184(3), it states the following:
“…. the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights…” [Emphasis added].
It does not use the words Chief Justice, nor does it give any sort of power to the CJ to take suo moto notice, or unilaterally decide whether a certain matter meets the set constitutional criteria of Article 184(3). Furthermore, the Supreme Court Rules, 1980 are also silent regarding such arbitrary powers of the CJ. Keeping in mind the way that this power has been used to derive ‘judicial entertainment’ and attract the cameras of the media in the past, the idea of giving value to the input of other senior judges of the Supreme Court will not only prevent future judicial adventures but also lead to better delivery of justice and create institutional harmony within.
The next point pertains to the creation of a new right to appeal the decisions given by the court under Article 184(3). The question is whether Parliament is competent enough to create such a law or does it need a constitutional amendment requiring a 2/3rd majority vote. In this context, Entry Number 55 of the Federal Legislative List (given in the Fourth Schedule) states the following:
“Jurisdiction and powers of all courts, except the Supreme Court, with respect to 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.”
This empowers Parliament to make laws regarding the jurisdiction of all courts. However, no laws can be made to expand the jurisdiction of the Supreme Court or grant any supplemental powers to it unless it has been expressly stipulated elsewhere in the Constitution. Those supporting this new appellate route are referring to Article 175(2) which states that,
“No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.” [Emphasis added].
They argue that Article 175(2) also covers the Supreme Court and expressly gives Parliament the power to confer jurisdiction upon the Supreme Court through laws, hence satisfying the requirement of Entry Number 55. They further buttress this by relying upon several other statutes such as the Land Acquisition Act, 1894 and the Election Act, 2017 which create a route to appeal to the Supreme Court the decisions of the High Court and the Election Commission, respectively.
Although these arguments seem to be quite satisfactory, what is different in the Act in question is that it is creating a new right to appeal the decision of the Supreme Court itself. When entertaining a petition under Article 184(3), the Supreme Court—being the highest appellate court—becomes the court of first instance, which leaves no room for the aggrieved party to appeal. To fulfil the requirements of a fair trial, there should be a right to appeal, but such a right can only be created through a constitutional amendment. Article 175(2) can provide a route to appeal to the Supreme Court the decisions rendered by the courts below, but it cannot be used to carve a new right to appeal against the decisions of the Supreme Court itself.
Over 2 months have passed since the Supreme Court has unanimously given an injunctive order against the Practice and Procedure Act, 2023. A law, having the backing of the majority of Parliament, has been reduced to a mere piece of paper—just with the stroke of a pen—while old practices (which the law intended to change) continue to be followed. Critics of the new law often lament it for being drafted in haste, but they do not explain the constitution of the 8-member bench or why it took only a few minutes for the bench to give the injunctive order.
If we analyse the order, it seems to adopt a very defensive tone, as if the judges have been quite annoyed at the new law. It is an established principle that whenever the constitutionality of a particular statute is in question, it is an obligation of the court to see it in a positive light and try to harmonise it with the relevant constitutional provisions. We do not see any such attempt from the honourable judges here. They rather seem to view it in a very narrow and strict sense and consider it a legislative effort to intervene into the judiciary’s independence. The Act in no way challenges the authority, power or liberty of the Supreme Court, rather—by empowering all judges—aims to dissolve the irrational concentration of power in the hands of the Chief Justice in the highest court of the country. Even if we assume specifically that the creation of the new right to appeal is not a valid law, it does not mean that Parliament wants to usurp the powers of the Supreme Court, or that it is against the independence of the judiciary. The thought process behind it was to give litigants a right to appeal in matters where it did not exist before. The legislature’s intentions should not be misconstrued in such a negative manner.
The order further states that the new law requires close scrutiny. However, there has been no close scrutinization of the statute by the bench. The court has given an interim order only after viewing the Act tentatively and prima facially. It seems to contradict itself. Moreover, it does not mention the relevant law which allows it to tentatively review a Bill and then suspend it. In Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265), a full court had ruled that,
“…ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc…”
In the current scenario, however, the court has suspended an entire Bill without giving any reasoning as to which aspects of the proposed law are unconstitutional and in what way.
The order throughout questions legislative competence. There is no ambiguity regarding the text of Article 191 of the Constitution (aforementioned), but critics of the law argue that Article 191 cannot be seen textually. Instead, the living tree approach must be followed by looking at the spirit of the Constitution which, according to them, envisions an independent judiciary with no interference from the legislature or the executive. There is no denying this, but it has in some places given Parliament the power to make and amend rules regarding the procedures and practices of the Supreme Court, for example when deciding the number of judges in the Supreme Court (Article 176), the scope of review (Article 188) and the rules of procedure (Article 191).
Furthermore, there is also an ongoing debate regarding the approach of interpretation to be adopted. In some recent constitutional matters, for example when Article 63-A was being interpreted in Presidential Reference No.1 of 2022 (PLD 2023 SC 42), the literal approach had been disregarded and the living tree approach prevailed, but an opposite route had been taken when deciding the election date in Punjab and Khyber Pakhtunkhwa in Suo Moto Case No.1 of 2023 (2023 SCP 169). On the other hand, the court in Mustafa Impex, Karachi v The Government of Pakistan (PLD 2016 SC 808) had adopted the literal approach and ruled that the federal government meant the entire cabinet. It will now be interesting to see whether the Supreme Court again adopts the literal approach concerning the interpretation of Article 191 and rules that the use of the word ‘Supreme Court’ in Article 184(3) means all judges of the court, as a result of which the Chief Justice cannot unilaterally use the constitutional powers in question.
The chaos and confusion that the injunctive order has created is now affecting other matters as well—such as the military courts case—and has disturbed the delivery of justice. It has rightly been pointed out by Isa J. that before properly disposing of the Practice and Procedure Act no hearings or benches should be constituted, especially for petitions filed under Article 184(3). Issuing of such interim orders can never be a solution to complex constitutional issues, for they not only hamper the efficient working of the courts, they also serve as a kick in the face of elected representatives.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
