The 1803 judgment in Marbury v. Madison established the idea of judicial review and the Supreme Court of the United States's power to judge the legality of legislative actions. It was a turning point in American legal history. Chief Justice John Marshall underlined the Court's function as a check on the legislature, which led to a power struggle between the Judiciary and Congress that gave rise to the case. With this decision, the Court assumed a significant role as a defender of the Constitution, with the power to overturn legislation that was thought to violate its tenets. The lasting significance of Marbury v. Madison is a testament to the ongoing importance of checks and balances in American government.
The Parliament is the highest legal authority in the UK's system of parliamentary sovereignty. However, there have been conflicts in recent years between the Supreme Court and the Parliament, notably with the passage of the Human Rights Act 1998. The UK Supreme Court's 2019 decision that the Prime Minister's counsel to the Queen to prorogue Parliament was illegal is a prominent example.
Similarly, Pakistan's Supreme Court has often been accused of judicial activism, especially during the tenure of Chief Justice Iftikhar Chaudhry (2005-2013). The Court aggressively checked governmental power and ensured that the Parliament and Executive function within constitutional limits. This often resulted in confrontations, with the Court annulling several parliamentary decisions.
In 2010, the Parliament approved the 18th Amendment to give the provinces greater authority, weaken the president's position, and change how judges are appointed. The Supreme Court, however, raised concerns about the latter's constitutionality, sparking a divisive discussion between the two parts of the government. The Court's interpretation of the statute demonstrates the intricate balance between legislative and judicial authorities, which supported the Amendment while preserving a role in judicial selections.
These examples illustrate that the dynamics between Parliament and judiciary can vary across different democracies. The constitutional framework, the political environment, and how each nation's history has built its institutions affect the power balance. The discussions and arguments between the Parliament and the judiciary profoundly impact the political climate and daily lives of individuals. Fundamental to these interactions are the principles of checks and balances, wherein conflicts between these branches ensure that neither becomes overly powerful. This balance is crucial in safeguarding democracy and promoting transparency and accountability.
However, it's also worth noting that frequent conflicts between the Parliament and judiciary can lead to political instability. Such instability might deter potential investors, disrupt economic growth, and introduce uncertainty among the citizenry. Additionally, public trust in these institutions can be affected by the nature of their interactions and conflict resolutions. Perceptions of partisanship or self-serving motivations can lead to declining public trust.
The Supreme Court (Practice and Procedure) Act, 2023
The Supreme Court (Practice and Procedure) Act, 2023, has been passed by the National Assembly to regulate certain practices and procedures of the Supreme Court of Pakistan. The Act establishes guidelines for the Constitution of benches to hear and decide cases, particularly those invoking the Court's original jurisdiction and matters involving the interpretation of the Constitution. It also introduces the right of appeal to a larger bench for cases falling under specific provisions of the Constitution.
Additionally, the Act grants parties the right to appoint counsel of their choice for review applications under Article 188 of the Constitution. Urgent matters are to be heard promptly within fourteen days of their filing. The Act takes precedence over other laws and court judgments. The objectives of the Act include ensuring fair trial and due process, addressing the invocation of suo motu powers, and facilitating early hearing of applications. This new Act reduces the Chief Justice's ability to constitute panels, hear appeals, or assign cases to judges, transferring these tasks to a three-member committee. The committee consists of the Chief Justice and the two most senior judges.
The forthcoming transition in the Supreme Court's leadership could shift its relationship with the Parliament. Depending on Justice Isa's philosophy and style, we might see the Supreme Court becoming more assertive or deferential towards the legislature. This transition, coupled with the recent parliamentary move to curtail the Chief Justice's powers, underscores the volatile and evolving dynamics between these two branches of government in Pakistan.
The Supreme Court (Review of Judgements and Orders) Bill, 2023
The "Supreme Court (Review of Judgments and Orders) Act, 2023" aims to empower and strengthen the Supreme Court of Pakistan in exercising its power to review judgments and orders. The Act enlarges the scope of review for judgments passed under Article 184 of the Constitution, allowing for a review process similar to an appeal under Article 185. It also establishes that review petitions will be heard by a larger bench than the one that issued the original judgment.
Additionally, the Act grants the right to the review petitioner to choose an advocate from the Supreme Court. The Act allows individuals to file review petitions against orders issued under Article 184(3) before the Act's commencement, provided it is done within sixty days of its effect. A review petition must be filed within sixty days of passing the original order. The Act's provisions override any conflicting laws or court judgments.
The bill aims to enhance the Supreme Court's capacity to review its judgments and orders, as authorized by Article 188 of the Constitution of Pakistan. The bill seeks to facilitate the exercise of this power by enlarging the Court's jurisdiction as specified in Article 188. The intention is to uphold the fundamental right to justice by ensuring a meaningful review of judgments and orders issued under Article 184 by the Supreme Court.
The fears, conspiracies, and conflicts highlighted are reminiscent of the potential impacts discussed earlier – they can disrupt political stability, foster public distrust, and create an uncertain environment. However, they also demonstrate how complex the interaction between Parliament and the judiciary is, affected not just by the actions of these institutions but also by a broader range of social, political, and professional forces.