Supreme Court (Practice and Procedure) Act, 2023: Constitutional Dilemma Between Parliamentary Supremacy and the Independence of Judiciary
This article intends to delve into the legal complexities surrounding the Supreme Court (Practice and Procedure) Act of 2023. The case recently decided by the full bench of the Supreme Court commands a prominent position in Pakistan’s constitutional and jurisprudential annals. This landmark case is poised to make a lasting imprint on Pakistan’s constitutional and judicial history, with far-reaching ramifications for the state’s trichotomy of powers. On the 11th of October, 2023 the apex court with a majority of 10-5 declared the Supreme Court (Practice and Procedure) Act, 2023 to be in accordance with the Constitution for reasons to be recorded later. Since the detailed, written judgments of the honourable judges are not yet available, this article will be confined to the reasoning and remarks expressed by the judges during the live proceedings of the case. The apex court scrutinised the Act from two pivotal angles: the separation of powers and the legal soundness of the provisions of the Act.
The Act in question suggests that every case, appeal or matter before the Supreme Court be considered and decided by a bench made up of the Chief Justice of Pakistan and two senior judges, in that order. Additionally, it states that any matter involving the exercise of original jurisdiction under paragraph (3) of Article 184 of the Constitution must first be brought before a committee for review. If the committee determines that the matter involves the enforcement of one or more fundamental rights, it must then establish a bench consisting of at least three judges of the Supreme Court, which may also include committee members. It also confers the remedy of appeal to the aggrieved party against a judgment of the Supreme Court under article 184 (3) of the Constitution of Pakistan.
The core contention revolves around the Act’s provisions stipulating the composition of benches in the Supreme Court and the process of adjudicating matters related to fundamental rights. Central to this debate is the historical context wherein the Chief Justice wielded significant influence over suo motu actions and bench formations. This legislative attempt to regulate such powers, though under contentious circumstances, signifies a potential shift towards increased transparency in judicial proceedings. Key stakeholders, including Chief Justice (CJ) Qazi Faez Isa, appear to be convinced of the notion of devolving suo motu powers to a three-member committee.
However, the central issue concerning Supreme Court hearings has revolved around whether Parliament has the constitutional authority to pass this legislation through regular procedures or whether it requires a constitutional amendment with a 2/3rd majority vote. Can Parliament, through simple majority, carve out a fresh appellate jurisdiction in the Supreme Court against an order of that very Supreme Court? Is Parliament competent to frame the rules of ‘practice and procedure’ for the Supreme Court? While legal scholars concur on the necessity of establishing guidelines for the formation of benches and the scrutiny of suo motu actions, discord exists regarding the prescribed procedural approach. Ought not these regulations stem directly from the Supreme Court itself?
The matters concerning the provisions of the Act appear to be mostly resolved, yet the contentious issue revolves around the fundamental principle of the separation of powers. Arguably, the provisions within the aforementioned Act may not infringe upon the judiciary’s independence. However, can the parliamentary enactment of rules and procedures for the Supreme Court through ordinary legislation be construed as an encroachment upon the independence of the judiciary? Although the Supreme Court has decided the matter, disagreement still exists among legal scholars as signified by 5 dissenting judges over the question of the competence of Parliament.
At the heart of the matter lies Article 191 of the Constitution of Pakistan which confers upon the Supreme Court the authority to frame rules governing its practice and procedure, subject to the Constitution and law, as the stated by the article:
“…Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.”
An elemental issue arises in the interpretation of the term “law” within this provision. Does “law” encompass ordinary legislation that contravenes longstanding constitutional conventions safeguarding judicial independence? Does it embrace conventions and principles, such as the separation of powers, as interpretive guides in discerning the ambit of “law”? In cases where judicial precedents and ambiguous statutory provisions stand in conflict, which ought to prevail in the hierarchy of legal authority?
It has been held in Saeedullah Kazim vs. Government of Pakistan that law is that which is enforced by law courts. In Kundan Bibi vs. Government Of Pakistan, it has been held that law does not mean only statute law but also includes principles laid down by judicial pronouncements of superior courts. In Government of West Pakistan vs. Begum Agha Abdul Karim Shorish Kashmiri, Justice Hamoodur Rehman has observed that “law” in Pakistan is:
“…not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law.”
The highest court has been tasked with adjudication within the framework set out in Article 191. The enquiry then arises as to whether the term “law” as articulated in Article 191 should be construed in a broad sense, in alignment with precedent judgments, or whether it necessitates a distinct interpretation informed by judicial precedents and constitutional conventions, thereby excluding ordinary legislation from the ambit of “law” within Article 191.
The Attorney General contended that ordinary legislation could not be ruled out of the ambit of “law” in the purview of Article 191, whereas, when asked about the status of the Supreme Court Rules, 1980 by Justice Munib Akhtar, he remarked that those rules indeed had the status of law but not within the purview of Article 191. Justice Ayesha Malik and Justice Ijaz ul Ahsan rightly raised the question concerning principles for the interpretation of the term “law” when it has been used 200 times in the Constitution. Without pronouncing any such principles, how can the Attorney General suggest excluding the Supreme Court Rules, 1980 from the ambit of “law”? If both ordinary legislation and Supreme Court Rules, 1980 can be read into the meaning of law under Article 191, which one shall prevail in case of conflict?
One may pose the argument that, given the Supreme Court’s role in discerning legislative intent when interpreting statutory provisions, the legislative act of regulating the Supreme Court’s procedures and rules through ordinary legislation serves to elucidate the legislature’s intent and thus falls within the purview of the term “law” as employed in the aforementioned provision.
However, during the adjudication of significant constitutional matters, constitutional articles are not considered in isolation. Courts typically engage in constitutional interpretation with a holistic approach, taking into consideration not only the specific constitutional provisions under scrutiny but also the broader constitutional framework and longstanding conventions, such as the principle of separation of powers and the independence of the judiciary. The apex court could have ruled out ordinary legislation from the ambit of law under Article 191 by interpreting it in light of the constitutional convention of independence of the judiciary, as decided by the apex court in the Al Jehad Trust Case based on the constitutional convention of seniority of judges. It is pertinent to note here that the principles of judicial independence and the separation of powers among the three branches of government represent longstanding and entrenched constitutional conventions, as stated in the Zia ur Rehman case:
“In the case of a Government set up under a written Constitution, the functions of the State are distributed amongst the various State functionaries and their respective powers defined by the Constitution. The normal scheme under such a system, with which we are familiar, is to have a trichotomy of powers between the executive, the legislature and the judiciary.”
The theory of separation of powers has also been recognised as a ‘basic structure’ and salient feature of the Constitution of Pakistan:
“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 theory of separation of powers is also recognised as a basic structure of the Constitution 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.”
Moreover, the independence of judiciary has been held to be a salient feature of the Constitution as well in District Bar Association vs Federation of Pakistan. Justice Azmat Saeed Khan held that amendments to the Constitution could be struck down if they violated the salient features of the Constitution namely parliamentary democracy, federalism and the independence of judiciary. If constitutional amendments, enacted with a two-third majority, undermine the independence of the judiciary and can be invalidated, then one may reasonably question why ordinary legislation should not be subject to similar scrutiny.
Additionally, the judgment in Zafar Ali Shah vs Pervez Musharraf states that no amendment shall be made to the salient features of the Constitution i.e. independence of judiciary, federalism and parliamentary form of government. Justice Jawwad S. Khawaja in Munir Hussain Bhatti v. Federation has said that historically, the independence of the judiciary and the separation of powers have been held to be two of the most undeniable principles of our constitutional scheme.
In Government of Balochistan v. Azizullah Memon, the Ordinance in question conferred unfettered and unrestricted power to administer criminal justice upon executive authorities. It was held that our Constitution was based on the principle of trichotomy of powers – another way of saying that it was based on the separation of powers – in which the executive, the legislature and the judiciary have their own functions independent of each other. The Ordinance, on these grounds, was declared unconstitutional and void.
It has been held in the Asfandyar Wali case that,
“…any legislative instrument which undermines independence of judiciary may be regarded as repugnant to the spirit of the Constitution. The Superior Courts have the power to declare such legislative instruments as unenforceable.”
However, a query raised by the honourable CJ Qazi Faez Isa during the live proceedings of the case, regarding whether judicial independence is an unqualified principle or must it be interconnected with certain legal provisions, warrants significant consideration. It is possible that the judges may redefine judicial independence not as an entirely standalone concept but as one contingent upon regulations enacted by the Parliament. This is yet to be seen (as the detailed judgment of the honourable judges is awaited). The Supreme Court may have decided that the law in question could not be construed as an infringement upon the independence of the judiciary as implied by the Chief Justice and as Justice Athar Minallah pointed out: could the Parliament not legislate on access to justice (concerning the right of appeal against Article 184 (3))? One may wonder whether the apparent access to justice is being paved by encroaching on the independence of the judiciary. Can it still be construed as access to justice? Some may find themselves agreeing with Justice Ijaz ul Ahsan when he said,
“Access to justice is access to an independent court.”
The former Chief Justice of Australia, Anthony Mason has also said that,
“The existence of an independent judiciary is an essential condition of the enforcement of the rule of law,” (and by extension an essential condition for access to justice).
The definition of independence of the judiciary is central to this case. Christopher M. Larkins offers one such definition:
“The Judicial independence refers to the existence of judges who are not manipulated for political gain, who are impartial towards the parties of a dispute, and who form a judicial branch which has the power as an institution to regulate the legality of government behaviour, enact ‘neutral’ justice, and determine significant constitutional and legal values.”
The political timing of the Act in question raises very important questions concerning the independence of the judiciary. The Act was passed when the apex court had ordered elections to be held in the provinces as per the Constitution after the provincial assemblies had been dissolved. Could the apex court have ignored the fact that the Act was passed to somehow tackle the constitutional order and secure further delay in the elections? Can it still be considered “good law” after taking into account the evident political and unconstitutional motives behind this legislation? Would this not amount to “manipulation for political gain” as mentioned by Christopher M. Larkins?
Keith Rosenn, a legal scholar, has defined the independence of judiciary as:
“…the ability to decide cases on the basis of established law and the merits of the case without substantial interference from other political or governmental agents.”
The independence of judiciary interpreted as freedom from political interference renders the Act in question a blatant encroachment on the independence of the judiciary, while also taking note of the subsequent political protests that took place outside the Supreme Court to influence the apex court’s decision regarding provincial elections. According to Barrister Asad Rahim Khan,
“…nor is there much point in mentioning how a bill meant to stress collective wisdom was passed via none: it was put up by a panicked cabinet in the dead of night, bounced through the standing committee that morning, and then approved by a minority government that spent its precious minutes bashing the court instead of debating the bill. Nor, even, that a law meant to regulate the court’s procedure was passed in a mockery of parliament’s own: Rule 123 of the Rules of Procedure and Conduct of Business in the National Assembly requires ‘two clear days’ to mull over a bill after it reaches the members’ hands. In sum, a law that was hailed as a win for parliament was passed by a rump Assembly fearful of the popular will.”
Nevertheless, the Supreme Court reached a different conclusion. It remains to be seen how the majority of judges have interpreted the concept of judicial independence as we await a detailed judgment.
Having thus established the recognition of the independence of judiciary as a salient feature of the Pakistani Constitution, along with the principle of separation of powers, our enquiry now turns to the status and significance of constitutional conventions. In the Judges’ case as well as Asad Ali’s case, due recognition has been given to constitutional conventions which are enforceable as if they are provisions of the Constitution itself. Additionally, the Supreme Court in Sajjad Ali Shah vs. Asad Ali also cited Supreme Court Advocates-on-Record Association v. Union of India in the following words:
“We are of the view that there is no distinction between the “Constitutional law’ and an established Constitutional convention and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the ‘Constitutional law’ of the land and can be enforced in the like manner.”
The Supreme Court in Supreme-Court Muhammad Aslam Awan vs Federation of Pakistan has mentioned that the Canadian Supreme Court has adopted the definition of constitutional convention propounded by the Chief Justice of Manitoba, Freedman C.J.M. In his words:
“It should be borne in mind however that, while they are not laws, some conventions may be more important than some laws. ‘Their importance depends on that of the value or principle which they are meant to safeguard. Also they form an integral part of the constitution and of the constitutional system. They come within the meaning of the word “Constitution” in the preamble of the British North America Act, 1867.”
The trichotomy of powers is one such convention which has been an integral part of the Constitution of Pakistan while recognition has also been given to the independence of judiciary in various judicial precedents.
Given the political and constitutional history of Pakistan, no law student or practitioner can question the need to preserve the independence of judiciary and separation of powers for upholding the rule of law and protecting the fundamental right of access to justice. The principle of separation of powers, in the words of Justice Scalia of the US Supreme Court, is:
“…the absolutely central guarantee of a just government.”
He went on to say:
“…our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.”
In the same vein, the fundamental rights of millions of Pakistanis would be worthless without the independence of the judiciary which is the guardian of those rights. In the words of James Madison, the founder of the US Constitution:
“If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers.”
Article 191, in conjunction with the aforementioned judgments of the apex court, suggests that despite the imperative for regulations, Parliament lacked the competence to enact them through a simple majority vote. This necessitates a constitutional amendment requiring a two-third majority vote. However, the Supreme Court bench reached a different verdict, affirming the legal competence of the Parliament.
A pertinent question which arises is that if the provisions of the Act in question bring about much-needed reforms and transparency, as posed by Chief Justice Qazi Faez Isa in the live proceedings of the case in question, why not sustain them regardless of the distinction between ordinary legislation and constitutional amendment?
The answer lies within the legal maxim of stare decisis. Allowing the Parliament, with a simple majority and ordinary legislation, to intervene in the affairs of the Supreme Court today, especially given the politically motivated origin of this legislation and its impact on the proceedings of the Supreme Court, including the notable case concerning provincial elections, raises concerns about the potential repercussions for future. The significant responsibility for foreseeing the consequences of its decisions rests with the Supreme Court. Had Justice Munir anticipated the upheaval that his doctrine of necessity would usher in, it might have spared Pakistan from enduring numerous constitutional crises. As politics and constitutional history are intertwined, one is compelled to contemplate the prospect of the Supreme Court being subjected to the whims of politicians through ordinary legislation. The issue at hand transcends the straightforward rendering of a verdict based on the explicit provisions of the Constitution; it pertains to the realm of jurisprudence.
While the legal community finds itself divided between the principles of parliamentary supremacy and the independence of the judiciary, there is collective hope to see comprehensive deliberations and insights from the esteemed judges of the apex court in their written judgments regarding the questions posed above, to rectify the trajectory of Pakistani jurisprudence.
The way forward is mutual respect between the two institutions. Good fences make good neighbours, as remarked by Justice Scalia quoting Robert Frost. Sir Anthony Mason states that,
“…independence, is not a guarantee of impartiality; nor does lack of independence necessarily lead to partiality.”
However, Pakistan has seen what the lack of independence coupled with impartiality can lead to. Our Constitution does embody the separation of powers but how strict this separation has to be needs to be interpreted by the judiciary. The recent judgment of sustaining the Act in question has indeed blurred the lines between this separation rather than affirming it.
In the words of Justice Munib Akhtar, the Act has made Parliament the “master of roster”. Moreover, sustaining the right to appeal against the original jurisdiction of the Supreme Court, even when granted through ordinary legislation with the impact of a constitutional amendment, has established a precedent. As a result, we will likely witness more ordinary legislation with the effect of constitutional amendments in the future, potentially rendering redundant the constitutional requirement of a 2/3rd majority for amendments.
The ruling of the Supreme Court undoubtedly signifies a victory for the proponents of parliamentary supremacy and a setback for the advocates of judicial independence.
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Since Parliament has been enabled in the first phase, we hope to see it obliged as well to constitutional conventions, the will of the people and constitutional conscience.
 PLD 1981 SC 42
 1971 PTD 43 LAHORE-HIGH-COURT-LAHORE
 PLD 1969 SC 14
 PLD 1973 SC 49
 SCMR 04 2021
 PLD 2015 SC 401
 PLD 2000 SC 869
 PLD 2011 SC 407
 PLD 1993 SC 341
 PLD 2001 SC 607
 PLD 1996 SC 324
 1999 SCMR 640 SUPREME-COURT
 1999 SCMR 640 SUPREME-COURT
 AIR 1994 SC 268
 2014 SCMR 1289
 Morrison v. Olson, (1988) 487 US 654
 Taft in Myers v. US, (1926) 272 US 52
 Plaut v. Spendthrift Farm Inc., (1995) 115 S. Ct. 1447,
 James Madison, Federalist No. 51
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 she might be associated.