On 11 October 2023, the Supreme Court of Pakistan sitting as a full court passed a landmark verdict upholding the Supreme Court Practice and Procedure Act 2023. Previously, an anticipatory injunction had been placed on the act by an eight-member bench of the Supreme Court headed by then Chief Justice Umar Ata Bandial.
The main arguments challenging this law revolved around a) whether the parliament had the legislative competence to pass this law; and b) whether the substantive right of appeal could be given via an Act of Parliament in cases falling under the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution or a constitutional amendment was the correct procedural way to bestow this right of appeal.
Another related question pertained to the retrospective effect of the right of appeal and whether it could be extended to all 184(3) cases decided prior to the passing of the 2023 law. Although the retrospective application of the right of appeal was not upheld, decisions in all the subsequent cases can be appealed. Therefore, the full court verdict delivered on 11 October 2023 is a very welcome decision for our jurisprudence because it upholds the Parliament’s right to legislate and grants the right of appeal in future cases decided under 184(3).
Had the Supreme Court not upheld the legislative competence of Parliament, it would have undermined Parliament’s role and position in the trichotomy of powers.
This law essentially aimed to empower the Supreme Court by democratising decision-making to an extent. The procedure of case allocation and formation of benches was amended to allow for greater consultation and engagement of the three most senior judges as opposed to the chief justice alone. This is likely to bring greater legitimacy, credibility, thought, and perspective to the process of bench-making and will do away with the perception of cases being allotted to ‘like-minded judges’. Such a perception had eroded public confidence in the apex court. Therefore, to uphold the sanctity of the third organ of the state and to restore confidence in the judicial process, the Parliament exercised its law-making function and passed this Act.
Some segments of the legal community and civil society viewed this as an attempt to clip the powers of the chief justice and an attack on the independence of the judiciary itself. On the other hand, voices from the bench during the historic televised proceedings of the case dramatically labelled the Parliament as becoming the new ‘master of the rolls’ by passing this law. They made it appear as if Parliament had encroached on the authority of the chief justice who had traditionally been the master of the rolls, with the power to make benches and allot cases.
Upon reading the Act, however, it becomes clear that the Parliament has no say in how the individual cases get allotted and to which judges. The Parliament has merely democratised the process of allocation of cases by assigning this task to a committee of three senior-most judges as opposed to one judge, i.e. the chief justice. The decision-making remains with the committee of judges and at no point can the Parliament interfere or dictate which judges should be on a particular bench and which cases should go to which bench. That power remains with the judiciary and, consequently, no question of a compromise on its independence appears to arise.
It upholds the right of appeal in future cases filed under the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution. Such cases previously had no forum of appeal except for the limited power of review.
More important than what this Act did for the judiciary was what the courts would do with the question of Parliament’s competence to pass laws. Had the Supreme Court not upheld the legislative competence of Parliament, it would have undermined its role and position in the trichotomy of powers of the three organs of the state as a law-making body, potentially leading to a situation of judicial supremacy, making the Parliament, particularly in matters related to the Supreme Court’s practice and procedure, subservient to the Supreme Court. This would have clashed with the constitutional provisions in Article 191, which says that “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.” The word ‘law’ includes Acts of Parliament. Secondly, the Constitution uses the word ‘may’ and not the word ‘shall’ when it allows the Supreme Court to make rules, subject to the Constitution and law. This again shows that the Constitution did not make it obligatory for the Supreme Court to make such rules and in case it did make such rules, they were subject to the Constitution and law. The Constitution establishes that the Supreme Court’s rules are not above the Constitution and the law.
Furthermore, ‘practice and procedure’ do not appear to be the same as the question of ‘jurisdiction and powers of the Supreme Court’ as used in Entry 55 of the Federal Legislative List, which states: “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 authorised by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers.” Even if it is, the Act does two things: a) lays down the procedure for the allocation of cases which is a purely procedural matter and b) by granting the right of appeal in future cases under 184(3), enlarges the jurisdiction of the Supreme Court, which is within its legislative competence under Entry 55 of Federal Legislative List.
In this way, the Supreme Court has given a historic verdict, balancing the doctrine of separation of powers and upholding Parliament’s competence and powers. It also upholds the right of appeal in future cases filed under the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution. Such cases previously had no forum of appeal except for the limited power of review, which is different from an appeal altogether. This verdict is likely to make the justice sector fairer and more transparent for all litigants. In that lies the future of judicial reforms. Indeed, a victory through and through for Pakistan, its Parliament and its Constitution.
The writer is the additional attorney general VI, Islamabad Rawalpindi.