The Supreme Court Practice and Procedure Act, 2023 was passed by the Parliament, despite the President of Pakistan refusing to give assent to the bill on the grounds that it was being challenged before the Supreme Court. In response, the Chief Justice promptly formed an eight-member bench under Article 184(3) of the Constitution to address the legal issues raised in three constitutional petitions. The petitioners argued that when the president returned the bill, the Parliament failed to address his reasons and instead focused on limiting the Chief Justice’s powers, which are exclusively held under Article 184(3), by unconstitutionally establishing a Committee of Judges under Article 191 or entry 55 of the Federal Legislative List. The petitioners further contended that the bill was passed and sent to the President for assent without following the mandatory provisions of Article 75. Therefore, they requested that the bill not be implemented, and if passed by the Parliament, be declared void and unconstitutional.
On 13th April, a bench of ‘likeminded judges’ unanimously decided to suspend the bill, which was in the process of being passed in Parliament, stating that even if the bill became an Act, it would not be applicable until the final decision of the Court, as it was seen as encroaching on the jurisdiction of the Supreme Court. The Court based its decision on two cases, one from Pakistan and the other from an American court.
Relying on the McCulloch case from American Jurisdiction, the Court expressed concerns that the power to regulate includes the power to destroy. Additionally, citing the Dr Mobashir Hassan case, the Court suspended the operation of the Act, disregarding the fact that the cited case was against the National Reconciliation Ordinance, 2007, which had already taken effect. In addition, the Sindh High Court Bar Association case decision had already declared all actions, acts, ordinances, and orders issued by General Musharraf after the imposition of a state of emergency unconstitutional and subject to approval from Parliament and respective provincial assemblies to maintain the constitutional trichotomy of powers. In Dr Mobashir Hassan’s case, the Court emphasised judicial independence and stressed the suspension of illegal actions or orders, rather than provisions of law. The Supreme Court stretched this judgment to justify the suspension of the Act, disregarding the fact that Parliament had resolved a controversy within the judicial system through this law.
This controversy had arisen due to the liberal use of Article 184(3) by Chief Justice Iftikhar Mohammad Chaudhry after his restoration to office following the lawyers’ movement in 2009. Chief Justice Chaudhry used this article as a weapon against the Pakistan People’s Party government for not fulfilling their promise of reinstating him after Musharraf’s exit. The extensive use of Article 184(3) faced opposition, particularly from Justice Saqib Nisar, who strongly disagreed with initiating proceedings under Article 184(3) and criticised the ‘judicial activism’ of the Iftikhar court, advocating for ‘judicial restraint.’ However, when Justice Nisar became the chief justice, he went far beyond his predecessor’s actions and used Article 184(3) extensively, contradicting his earlier stance. The unnecessary use of this provision by both Justice Iftikhar and Justice Nisar undoubtedly tarnished the image of the Supreme Court, resulting in a loss of public confidence in the country’s judicial system.
The initiation of proceedings by the court is often perceived as self-promotion by the chief justices, as the statements and observations made by the judges during the proceedings receive significant coverage in the media. For example, Justice Khosa’s remarks in the Panama Case, quoting the novel “The Godfather,” were widely publicised and used as election rhetoric against Nawaz Sharif by his political opponents. Chief Justice Bandial’s remarks in most constitutional matters are also considered inappropriate, raising questions about the impartiality and neutrality of the Supreme Court. He consistently disregarded the views of his fellow judges, particularly in the decision made in the Punjab election case. It appeared that he was following Justice Saqib Nisar’s statement that ‘law is what he says.’
Chief Justice Bandial, using the protection of Article 184(3), has exceeded his jurisdiction by forming benches while ignoring senior judges, solely to obtain a decision of his preference. He not only forms the benches but also selectively picks the petitions, as seen in the case of a constitutional petition filed in the Punjab election matter by the Christian community requesting an increase in their representation through a fresh census. However, their petition was refused and they were told to approach the appropriate forum. Interestingly, the Supreme Court took notice of the Punjab election during the proceedings of the transfer of the Capital City Police Officer (CCPO) Lahore case, a matter unrelated to the election, but denied the fundamental rights of the Christian community, fearing it might hinder the predetermined decision on the Punjab election matter.
The impartiality and neutrality of some judges on the eight-member ‘likeminded bench’ are already in question following the federal law minister’s public apology for bringing two junior judges to the Supreme Court at the behest of Chief Justice Bandial. This apology itself highlights the sorry state of affairs in the Supreme Court, where junior judges bypass senior judges merely based on the chief justice’s preference.
The Supreme Court’s decision to suspend the Supreme Court Practice and Procedure Act, 2023, under the assumption that it intrudes upon judicial independence, is based on a wrong presumption. The Act actually helps resolve existing conflicts and differences of opinion among the judges regarding the invocation of Article 184(3).
The Supreme Court is an organ that should function as a balance between the executive and the rights of individuals, protecting them against any infringement. However, when the Supreme Court fails to follow the principle of seniority within its own institution, how can it deliver justice to the common citizens of society? The unchecked and unlimited power exercised by the chief justice under Article 184(3) is not only disapproved by political parties but has also received strong criticism from lawyers’ bodies. The Pakistan Bar Council passed a resolution against Justice Mazahar Ali Akbar Naqvi, calling for proceedings against him on serious corruption charges and requesting that he not be included in any bench. Despite this, he continues to be part of every bench hearing important constitutional matters, contradicting his own stance on the moral standing of judges in the Justice Faez Isa case.
In addition to assuming jurisdiction under Article 184(3), the Supreme Court bypasses the jurisdiction of regular courts, violating Article 10A of the Constitution, which guarantees the right to a free trial and due process. The Act allows aggrieved individuals to directly approach the Supreme Court, bypassing regular courts. While numerous petitions concerning long delays in deciding cases, inefficiency and incompetence of judicial officers, and executive overreach are pending before the Human Rights Cell of the Supreme Court, only those cases that attract public attention are selected, further enhancing the image of the chief justice as a messiah-like figure. Furthermore, under the jurisdiction of Article 184(3), the Supreme Court acts as the first and the final arbiter, with no right to appeal or challenge its decisions. The only recourse for the aggrieved party is to file a review, which has very limited jurisdiction.
The Parliament has not acted wrongly by passing the Act; instead, it has supported the judges of the Supreme Court who have consistently sought to define the powers of the chief justice under Article 184(3) of the Constitution and establish guidelines for invoking the Court’s jurisdiction.
The Parliament has not acted wrongly by passing the Act; instead, it has supported the judges of the Supreme Court who have consistently sought to define the powers of the chief justice under Article 184(3) of the Constitution and develop guidelines for invoking the court’s jurisdiction. However, the chief justice, considering it an attempt to undermine his powers, formed another bench of ‘likeminded judges’ to overturn the judgment passed by the previous bench. Disputes between the chief justice and his fellow judges regarding the invocation of original jurisdiction are not new. Recently, two members of the bench embarrassed former Chief Justice Saqib Nisar in Peshawar when they deemed a matter unworthy of suo moto proceedings.
The Supreme Court’s decision to suspend the Supreme Court Practice and Procedure Act, 2023, under the assumption that it intrudes upon judicial independence, is based on a wrong presumption. The Act actually helps resolve existing conflicts and differences of opinion among the judges regarding the invocation of Article 184(3). The Supreme Court has emphasised in numerous judgments that any authority vested with discretionary powers should use them judiciously, reasonably, and without arbitrariness, acting fairly, impartially, and justly. The Act’s preamble explicitly states the need for its enforcement to ensure citizens are treated according to the law, as guaranteed by their fundamental right to a free and fair trial and due process under Article 10A of the Constitution, and it also upholds the right to appeal as enunciated by Islam.
The Supreme Court must recognise that the Parliament has addressed the issue that has caused conflicts among judges by streamlining the law in accordance with the Constitution of the country. The Act will improve the judiciary’s image by providing a formula for invoking jurisdiction under Article 184(3), requiring matters to be referred to a committee formed under Section 3 of the Act to determine their public importance. If the committee agrees that an important question is involved, it will refer the matter to a bench consisting of no less than five members for a hearing. Importantly, the Act also provides the right to appeal for the aggrieved party, which was not available before. By protecting, defending, and preserving the rights of individuals against the high-handedness and injustice of state institutions, the Act will help restore public confidence in the Supreme Court.
The writer is the additional attorney general VI, Islamabad Rawalpindi..