The trichotomy of powers is a bedrock of modern democracies. Pakistan’s constitutional scheme is founded on the same principle, with each organ mandated with its distinct role, and the independence of the judiciary as its salient feature.
The judiciary, for the most part, has been under scrutiny for its role in ‘judicial activism’ and ‘overreach’. At the same time, independence of the judiciary is also set at naught with over-indulgence of other institutions meddling in its internal affairs as well as decision making. Once again, the judiciary has found itself at the center stage in the politically charged up climate.
In the backdrop of a series of criticisms advanced outside and within the Supreme Court for the ‘mode and manner’ of exercising its suo motu jurisdiction, the Parliament jumped on with light speed to table the Supreme Court (Practice and Procedure) Bill, 2023 to “provide for the practice and procedure of the Supreme Court of Pakistan.” The proposed Bill was passed by a joint sitting of the Parliament, after being returned by the President with a ‘request for reconsideration.’
The Bill poses a number of questions regarding its legality, especially in view of trichotomy of powers envisaged in the Constitution. For a discussion thereupon, it is vital to highlight that the legislature has a presumption attributed to it for knowing the law, and for intending to legislate on matters in complete harmony with the Constitution. These presumptions have been relied upon by the Superior Courts, and resultantly form part of judicial dictums.
Therefore, one cannot reasonably presume that the Parliament was oblivious to the constitutional provisions conferring upon the Supreme Court the power to regulate its ‘practice and procedure’. Pursuant to this, the Supreme Court Rules, 1980 were framed and have been in force since then.
The Constitution, while granting this power under Article 191 states that it is “subject to the Constitution and law.” Resultantly, one argument that stems from the bare reading of this article suggests that such power can be circumscribed through a legislation by the Parliament.
However, delving deeper into the Constitution confirms that the power of Parliament to legislate is not unfettered. To this extent, the Parliament must possess legislative competence to enact on any particular subject.
Articles 70 and 142 of the Constitution empower the Parliament to introduce and make laws, respectively regarding ‘any matter in the Federal Legislative List’ provided in the Fourth Schedule, however it is ‘subject to the Constitution’.
Entry 55 of Part I of the Schedule, more specifically, authorizes the Parliament to make laws in respect of jurisdiction and powers of all courts, “except the Supreme Court.” Furthermore, under Entry 55, the Parliament can enact on enlargement of the jurisdiction of the Supreme Court, and confer supplemental powers upon it. This power, again, is subject to the extent as is “expressly authorized by or under the Constitution.”
Through the Bill, the Parliament proposes a mechanism for constitution of benches, fixation of cases, and exercise of suo motu jurisdiction by the Supreme Court. The mischief, i.e. regulation of the unbridled discretion resulting in an alleged “one-man show”, is a long-standing demand also from within the judiciary. However, any step in that regard ought to be taken the right way - within the four corners of the Constitution and law.
The scheme of a Constitution based on trichotomy of powers deprecates institutions encroaching upon each other’s domain and internal functioning. The Supreme Court, or any other institution, must be given its due autonomy to regulate itself within its constitutional mandate, just like the Parliament does under Article 67.
Additionally, the Bill also aims to enlarge the appellate jurisdiction of the Supreme Court against the orders passed in its original jurisdiction under Article 184 (3). This exceeds the scope of appellate jurisdiction, as well as the other jurisdictions of the Supreme Court, specifically enumerated under Articles 184-186 of the Constitution. Any alteration therefrom will have the effect of supplanting the Constitution, which can be done by a constitutional amendment, not through a statute.
The Bill is under challenge before an eight member bench of the Supreme Court, as well as the Islamabad High Court. Any decision thereupon will draw its own implications, and might invite a new stir of controversies. An earlier decision of the Supreme Court has already been disregarded by the Parliament through its resolution.
Therefore, keeping in view the incredibly polarized political climate within the country, a system of oversight and accountability is to be carefully exercised. While clamping on ‘judicial activism,’ the Parliament is also expected to show ‘restraint’ and not overstep its constitutional mandate, and must navigate carefully around the independence of judiciary, a salient feature of the Constitution.
It is only through institutions exercising autonomy, internal development and functioning within their constitutional domain, that we can ensure strengthening of institutions, democracy and the country.
The judiciary, for the most part, has been under scrutiny for its role in ‘judicial activism’ and ‘overreach’. At the same time, independence of the judiciary is also set at naught with over-indulgence of other institutions meddling in its internal affairs as well as decision making. Once again, the judiciary has found itself at the center stage in the politically charged up climate.
In the backdrop of a series of criticisms advanced outside and within the Supreme Court for the ‘mode and manner’ of exercising its suo motu jurisdiction, the Parliament jumped on with light speed to table the Supreme Court (Practice and Procedure) Bill, 2023 to “provide for the practice and procedure of the Supreme Court of Pakistan.” The proposed Bill was passed by a joint sitting of the Parliament, after being returned by the President with a ‘request for reconsideration.’
The Bill poses a number of questions regarding its legality, especially in view of trichotomy of powers envisaged in the Constitution. For a discussion thereupon, it is vital to highlight that the legislature has a presumption attributed to it for knowing the law, and for intending to legislate on matters in complete harmony with the Constitution. These presumptions have been relied upon by the Superior Courts, and resultantly form part of judicial dictums.
Therefore, one cannot reasonably presume that the Parliament was oblivious to the constitutional provisions conferring upon the Supreme Court the power to regulate its ‘practice and procedure’. Pursuant to this, the Supreme Court Rules, 1980 were framed and have been in force since then.
The Constitution, while granting this power under Article 191 states that it is “subject to the Constitution and law.” Resultantly, one argument that stems from the bare reading of this article suggests that such power can be circumscribed through a legislation by the Parliament.
However, delving deeper into the Constitution confirms that the power of Parliament to legislate is not unfettered. To this extent, the Parliament must possess legislative competence to enact on any particular subject.
Articles 70 and 142 of the Constitution empower the Parliament to introduce and make laws, respectively regarding ‘any matter in the Federal Legislative List’ provided in the Fourth Schedule, however it is ‘subject to the Constitution’.
Entry 55 of Part I of the Schedule, more specifically, authorizes the Parliament to make laws in respect of jurisdiction and powers of all courts, “except the Supreme Court.” Furthermore, under Entry 55, the Parliament can enact on enlargement of the jurisdiction of the Supreme Court, and confer supplemental powers upon it. This power, again, is subject to the extent as is “expressly authorized by or under the Constitution.”
Through the Bill, the Parliament proposes a mechanism for constitution of benches, fixation of cases, and exercise of suo motu jurisdiction by the Supreme Court. The mischief, i.e. regulation of the unbridled discretion resulting in an alleged “one-man show”, is a long-standing demand also from within the judiciary. However, any step in that regard ought to be taken the right way - within the four corners of the Constitution and law.
The scheme of a Constitution based on trichotomy of powers deprecates institutions encroaching upon each other’s domain and internal functioning. The Supreme Court, or any other institution, must be given its due autonomy to regulate itself within its constitutional mandate, just like the Parliament does under Article 67.
Additionally, the Bill also aims to enlarge the appellate jurisdiction of the Supreme Court against the orders passed in its original jurisdiction under Article 184 (3). This exceeds the scope of appellate jurisdiction, as well as the other jurisdictions of the Supreme Court, specifically enumerated under Articles 184-186 of the Constitution. Any alteration therefrom will have the effect of supplanting the Constitution, which can be done by a constitutional amendment, not through a statute.
The Bill is under challenge before an eight member bench of the Supreme Court, as well as the Islamabad High Court. Any decision thereupon will draw its own implications, and might invite a new stir of controversies. An earlier decision of the Supreme Court has already been disregarded by the Parliament through its resolution.
Therefore, keeping in view the incredibly polarized political climate within the country, a system of oversight and accountability is to be carefully exercised. While clamping on ‘judicial activism,’ the Parliament is also expected to show ‘restraint’ and not overstep its constitutional mandate, and must navigate carefully around the independence of judiciary, a salient feature of the Constitution.
It is only through institutions exercising autonomy, internal development and functioning within their constitutional domain, that we can ensure strengthening of institutions, democracy and the country.