No-jargon guide: the Supreme Court (Practice & Procedure) Act decision

BACKGROUND

The Pakistani Parliament passed a Bill on 10 April 2023 that addressed certain practices and procedures of the Supreme Court. It notably addressed: (i) the constitution of benches, (ii) regulated the suo motu powers, (iii) provided for appeals against the orders passed by the Supreme Court of Pakistan in its original jurisdiction, (iv) established a right to appoint counsel of choice for filing a review application, and (v) regulated the fixation of urgent matters.

However, before the bill was assented to by the President and became an Act of Parliament, it was challenged before the Supreme Court of Pakistan through a number of petitions. An eight-member bench of the Supreme Court, formed by the then Chief Justice (R) Umar Ata Bandial, heard the petitions on April 13, 2023 and suspended the operation of the legislation preemptively, in an unprecedented manner, even when the law had not come into force.

Consequently, when the bill was deemed to have been assented to by the President on April 21, 2023, and became an Act of Parliament. The Act could not be given any effect nor acted upon in any manner whatsoever drawing serious concerns amongst the legal fraternity, including representatives of different Bar Councils across the country that issued a joint declaration against the suspension. They also called for a protest and marked April 18, 2023 as “Black Day” asking the SC to recall the suspension order.

September 16 saw the retirement of Justice Umar Ata Bandial from the position of CJP, and Justice Qazi Faez Isa took over as the top judge on April 17. In a move nothing short of a course correction, the new CJ formed a Full Court bench of the SC a day after his oath, comprising 15 judges, to hear the petitions filed to set aside the Act. The hearings were broadcast on TV and, after five sessions, concluded on October 11, 2023.

The Full Court, with a majority of 10 judges, held that the Supreme Court (Practice and Procedure) Act, 2023, is in accordance with the Constitution through its short order.

DILUTION OF AUTHORITY

The Supreme Court (Practice and Procedure) Act, 2023, dilutes and curtails the authority and power of the Chief Justice of the Supreme Court and stipulates that all benches shall be constituted by a committee, comprising the Chief Justice and two senior-most judges. This dilution was introduced to curb “one-man-show” and “dictatorial behavior” at the Supreme Court.

EFFECT ON SUO MOTU CASES

The Act also curtails the authority and power of the Chief Justice in taking suo motu notice and provides that all suo motu actions shall first be placed before the Committee, comprising the Chief Justice and two senior-most judges. Only if the Committee is of the view that the question involved pertains to the enforcement of any fundamental rights, a suo motu action can be taken. This requirement may prove to be an obstacle for the Chief Justices in taking suo motu on any matter on their personal agenda.

CONSTITUTIONAL INTERPRETATION

The Act prescribes that, in any matter requiring the interpretation of a constitutional provision, the Committee shall constitute a bench comprising not less than five judges of the Supreme Court. This requirement will ensure that the interpretation of constitutional provisions is made fairly and transparently, rather than providing the Chief Justice with the discretion to form a bench comprising members agreeing or conforming to particular views or opinions.

RIGHT OF APPEAL

The Act introduced a right to appeal from a decision of the Supreme Court. Previously, and quite absurdly, a right to appeal from an order passed in suo motu proceedings was not available to the parties, leaving them, in many cases, without a recourse or remedy. A good example of this is the case of residents of the Nasla Tower, Karachi where of them lost their hard-earned assets without any recourse. This right to appeal will also prove to be an added check on the exercise of suo motu powers.

However, the provision allowing parties to file an appeal against the orders/decisions passed before the passing of the Act, was deemed to be illegal.

Hence, no one can challenge the orders passed in suo motu cases before the enactment of the legislation.

COUNSEL OF CHOICE & URGENT MATTERS

The Act has allowed a party to appoint a counsel of its own choice. Previously, parties were not allowed to change counsel even if they wished to do so.

It provides that an application seeking urgency or interim relief must be taken up for hearing within 14 days from its filing. Previously, an application seeking urgency or interim relief was not taken up in a timely manner (in some cases, even in years), and the parties were exposed to coercive actions.

Personally, I consider this Chief Justice Qazi Faez Isa’s way of correcting the course of jurisprudence by upholding the right to a fair trial for all citizens, ensuring fairness and transparency at the cost of diluting his own power and authority.