A key principle of democratic governance is the preservation of the constitutional scheme of “separation of powers”. The constitution prescribes the manner and method of establishing the three organs of the state – legislature, executive, judiciary – and apportioning the powers of governance amongst them.
This is precisely what has been provided by the Constitution of Pakistan. Thus, the legislature makes laws, which are enforced by the executive (Government) and conflicts and disputes, if any, are resolved by the judiciary, through proper application and interpretation of laws. By defining the role and functions of each organ, the Constitution implicitly places checks and limits on their powers, and prohibits them from travelling beyond or interjecting themselves into the domain of the other organ or organs.
The impression of rift within the Court is unfortunate. Judges may let go of their ego for a while and show unity to forestall the attempt to undermine the autonomy and independence of the judiciary, and maintain public trust and confidence in the system of administration of justice in the country. If enacted, the Court may strike down all its provisions, except the clause providing for right of appeal
Such a system of governance, based on the principle of “trichotomy of powers”, is regarded as a civilized system of governance. As a result, the citizens enjoy fundamental rights, including right to life, liberty, dignity, property and equality of status, opportunity and before law.
This being the constitutional scheme of governance, let’s examine the “Supreme Court (Practice and Procedure) Bill 2023” (“Bill”), as to whether it is in accord with the Constitution or otherwise. The key provisions of the Bill are: (i) constitution of benches by three-Member Committee, comprising the Chief Justice and two most senior judges; (ii) cases under the original jurisdiction under Article 184 (3) shall be placed before the said Committee to determine their admissibility and placement before a bench; (iii) right of appeal (with retrospective effect) is made available to the aggrieved party; (iv) right to choose counsel of choice in review jurisdiction; and (v) application for fixation of urgent matters to be heard within 14 days.
Quite obviously, the Bill seeks to repeal and supplant the existing provisions, contained in the Supreme Court Rules 1980 (“Rules”), relating to the internal working of the Court. The Rules were framed under Article 191 of the Constitution and are old and time tested. Thus, the clause relating to the “constitution of benches” is dealt with by Order XI of the Rules, which stipulates that every cause, appeal or matter shall be disposed of by a Bench, comprising judges to be nominated by the Chief Justice. The clause is therefore unnecessary and unwarranted and an undesirable interference in the internal working of the Court.
Similarly, the clause relating to the “original jurisdiction” is equally superfluous, since it too is covered by Order XXV of the Rules, which prescribe the manner and method of filing petitions for enforcement of Fundamental Rights and detailing also the number of judges to sit in every such bench. The only problematic issue had been the suo motu exercise of authority by the Chief Justice, which had been taken exception to by the bar; and from time to time, was also raised by individual judges. It is a failure on the part of the Supreme Court to bring about necessary changes in Rules for the purpose. The gap needs to be filled by suitable amendment in the Rules to check the discretionary powers of the Chief Justice in taking up suo motu cases. There is no need for interference by the Parliament.
The clause providing for “right of appeal” is a welcome development, since one right of appeal is a universal principle of jurisprudence. The Constitution was silent about it and the gap or deficiency persisted. It could not have been covered under the Rules; hence legislation was required. However, giving it retrospective effect, is problematic and will have serious implications and complications. It will open a pandora box, as scores of cases, already decided and judgments executed, will reopen! These being settled and closed transactions need not be revived.
Seemingly the provision is inserted to pave way for the return of a convict, the PML(N) supremo! It is unfortunate that the august Parliament could stoop so low, so as to facilitate the process. But this is nothing new. History is witness to the fact that convicted and undertrial political figures run abroad to avoid trial and escape punishment. They return at the opportune time to get a clean slate from the courts. The Government and Judiciary share the blame for lending a helping hand.
The provision for engaging a “counsel of choice” in review cases, is equally available under the Rules. Order XXVI states that the counsel who argued the appeal shall appear at the review stage. This is so, because review is not trial or appeal; its scope is extremely limited: requiring the counsel to point out errors, mistakes or blunders in the verdict. No other grounds can be quoted or justification given. This function is better performed by the counsel, who earlier argued the case, because he is familiar with the law and facts of the case. A new or fresh counsel is ill-suited to appear and argue. Again, not even one percent of review petitions are admitted and relief obtained. Thus, the fee paid to counsel is wasted. As such, the clause is misleading, indeed, an attempt to cheat! The Government needs to inform the litigant public in this regard, rather than letting them be swindled by unscrupulous elements.
Finally, the clause dealing with “fixing applications for urgent matters”, is uncalled for and unwarranted. All such applications are examined by the Chief Justice in Chambers, who decides as to whether or not priority be accorded to them, as against other pending cases.
In short, except for the clause providing for appeal, the Bill suffers from major defects and shortcomings. It seeks to supplant the Supreme Court Rules 1980, and is an undue interference in the internal working of the Court. It is a supreme example of colorable legislation and a blatant intrusion into the judicial domain. It violates the principle of separation of powers.
Seemingly, the Bill is the Government response to the order of the three-member Bench for holding elections in Punjab. The Prime Minister, Cabinet Members and other parliamentarians criticized the Bench, even threatening them with references for misconduct to be filed against them in the Supreme Judicial Council. It was certainly violative of the safeguard under Article 68 of the Constitution, which prohibits discussion in Parliament on the conduct of judges. It is an assault on the Chief Justice of Pakistan (head of the Judiciary) and the justice sector. It violates the autonomy and independence of the judiciary, guaranteed by the Preamble, read with Article 2A of the Constitution.
The Bill is challenged in the Supreme Court and an eight-member Bench constituted for hearing. The Chief Justice may add the 2 most senior judges to the Bench. The impression of rift within the Court is unfortunate. Judges may let go of their ego for a while and show unity to forestall the attempt to undermine the autonomy and independence of the judiciary, and maintain public trust and confidence in the system of administration of justice in the country. If enacted, the Court may strike down all its provisions, except the clause providing for right of appeal.
(The author served as Registrar, Supreme Court and Secretary, Law & Justice Commission of Pakistan)
