Legal Fraternity Says Supreme Court's Landmark Decision On Judicial Powers To Have Far-Reaching Impact

Lawyers agree the decision will ultimately benefit litigants while also bolstering the independence of the judiciary since coopting or taking over the institution will be significantly more challenging

Legal Fraternity Says Supreme Court's Landmark Decision On Judicial Powers To Have Far-Reaching Impact

Supreme Court's decision on the Practice and Procedure Act 2023, wherein the top court gave up the chief justice's unfettered and unbridled discretionary powers to form benches and take suo moto notices, is being widely appreciated as a milestone in the politico-judicial history of the country and one many hope will lead to judicial reparations. 

The powers of the chief justice have been notably diluted. Soon after the judgment was pronounced, a debate started that the powers of chief justices of high courts regarding the formation of benches and fixation of cases should also be regulated on a similar pattern as the requirement for openness and transparency extends across the superior judiciary. On the one hand, the judgment to uphold the Act has also acknowledged and upheld the supremacy of the Parliament, but on the other, former chief justices were let off, Scott-free, as the top court refused to grant retrospective right to appeal against orders issued under Article 184(3).

From the verdict in the Panama Papers to matters of elections in Punjab and Khyber Pakhtunkhwa until the retirement of former chief justice Umar Ata Bandial, the discretionary powers of a chief justice to form a bench were greatly exploited in a partisan manner. Many argue that recent developments in Pakistan's jurisprudence, which has shaped the country's politics, cannot be undone. However, granting retrospective effect to appeals could have been an opportunity for the judiciary to wash off the stigma of bias that has clung to it in recent years.
By granting retrospective effect to appeals and with the Supreme Court Review of Judgement and Orders Act 2023 still in effect, appeals and curative reviews against judgments issued under Article 184(3) could have been filed for adjudication during the tenure of Chief Justice Qazi Faez Isa. CJP Isa has indicated that his top priority is to put the house of the Supreme Court in order first. 

But another section of the legal fraternity believes that there is a lot more for the incumbent chief justice to do without digging into the past. However, they say that the Practice and Procedure Act 2023 judgment will have far-reaching consequences in the administration and dispensation of justice and the country’s politics. 

In the aftermath of experiences under former chief justices Iftikhar Muhammad Chaudhry and Saqib Nisar, the country found itself grappling with the age-old dangers associated with officials wielding absolute power – that such power tends to corrupt, and absolute power corrupts absolutely.

"First and foremost, this decision heralds a significant transformation for the judiciary, bolstering its independence, accountability, and credibility," said legal expert and lawyer Usama Khawar Ghumman.

He said that by redistributing authority from an individual to a three-person committee, the prospects of orchestrating a complete takeover of constitutional courts through manipulation by chief justices would become substantially more challenging.

Ghumman told The Friday Times that the consequences within the country's political sphere will manifest on two fronts. 

"Firstly, at the broader institutional and political level, this decision will impact the system of checks and balances and the separation of powers," he said, adding that it will affect parliamentarians who have faced disqualification, particularly major political figures such as Nawaz Sharif and Jehangir Khan Tareen.

"For the Parliament, the ruling opens the door to exert more checks and balances on the judiciary, which the judiciary had resisted until now. Consequently, Parliament can reclaim a more active role in appointing judges to superior courts, and the constitutional Parliamentary Committee on judicial appointments could gain prominence," he added.

Renowned constitutional expert Hafiz Ahsan Khokhar told The Friday Times that the judgement would have far-reaching effects on the delivery of justice at the Supreme Court, both in terms of proceedings initiated under Article 184(3) of the Constitution and the process of constituting benches, which resultantly would lend a greater degree of fairness to proceedings of the apex court and would also avoid criticism.

He said that there is no doubt that suo moto proceedings under Article 184(3) of the Constitution and the makeup of the Supreme Court judges' benches in light of significant constitutional issues, there has always been a great deal of discussion about the chief justice's authority, procedures, and use of discretionary powers. 

Khokhar said that the act has critically described that an appeal must be filed within 30 days of the larger bench of the Supreme Court receiving the jurisdiction's final order and that the hearing for such an appeal must be set within a window of no more than 14 days. 

"Additionally, it gives a party the freedom to select the attorney of its choosing when submitting a review application. A cause, appeal, or other matter's application alleging urgency or requesting interim relief must be scheduled for hearing within 14 days of the application's filing," he added. 

He was of the view that while implementing the provisions of the Practice and Procedure Act, substantial relief would be available for those against whom the proceedings would be initiated under Article 184(3) of the Constitution but simultaneously would also provide relief for the common litigants for the early hearing of cases, within 14 days from the date of filing them. 

The legal expert added that the credit for the judgment should also go to the incumbent Chief Justice of Pakistan, who was very generous in giving up his discretionary powers and believed in the common and collective wisdom of the Supreme Court as he parted with power to share it with the two senior-most judges of the Supreme Court on Article 184(3) proceedings and constitution of benches for hearing cases filed in Supreme Court. 

Hafiz Ahsaan Ahmad, however, said that while there was no clear retrospective effect of the present law on the cases decided under Article 188 of the Constitution when their judgments were challenged after the decision announced under Article 184 (3) of the Constitution, the Supreme Court considered this aspect as well and clarified that this law would not have the retrospective effect but would apply to proceedings initiated from the date of its promulgation.

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain