The Practice and Procedure Act 2023 has facilitated access to justice, and there appears to be nothing unconstitutional, illegal or objectionable in the act on a plain reading of these provisions.
The Supreme Court of Pakistan observed this as it released the detailed judgement on the act on Wednesday.
"We have very carefully considered each and every provision of the act and are of the view that it has facilitated access to justice, instilled transparency, made the realisation of Fundamental Rights more effective, and the Supreme Court more independent," observed the top court in detailed judgment on a set of petitions challenging the Practice and Procedure Act 2023.
The 22-page judgment, authored by Chief Justice Qazi Faez Isa, further observed that, in effect, the act does the very opposite in ensuring the enforcement of fundamental rights, strengthening the judiciary and creating greater independence therein.
"The office of the chief justice has also been strengthened as there is an element of continuity when consultation takes place with the two most senior Judges. The measures taken in the act ensure judicial independence, and the Supreme Court has been made to better serve the people."
It crucially observed that the Constitution does not bestow unlimited jurisdiction on the Supreme Court, let alone on its chief justice and goes on to sketch an outline of the powers and limitations of powers of the top court and its judges.
"The Supreme Court comprises the chief justice and all the judges of the Supreme Court. The Constitution does not grant to the chief justice power to decide cases unilaterally and arbitrarily. The chief justice cannot substitute his wisdom with that of the Constitution. Nor can the chief justice's opinion prevail over that of the judges of the Supreme Court."
Regarding the term ''Master of the Roster'', a term first used by the top court's incumbent judge, Justice Munib Akhtar, Chief Justice Isa has observed that the term finds no mention in the Constitution, any law or even in the Rules.
"The word master is offensive in a constitutional dispensation founded on democracy. Master also connotes servitude, the extreme form of which is slavery, which is prohibited by the Constitution," the judgement added.
It is further observed that history stands witness to the fact that when power is concentrated in an individual, disastrous consequences invariably follow.
"Irreparable damage is caused to the judiciary and to the people of Pakistan when the legitimacy, integrity and credibility of the judiciary is undermined. If the people lose their trust in the judiciary, it will render decisions made by it mere words on paper, without credibility and moral authority. The surest way for this to happen is when cases are not decided in accordance with the Constitution."
Interventions should be restricted to only when Parliament enacts legislation which is demonstrably unconstitutional. With respect to the act in question, this has not been demonstrated, observed the chief justice.
Parliament is empowered
Regarding the legislative powers pertaining to the working of the Supreme Court, the top court observed that the Constitution empowers the parliament to legislate with regard to making the practice and procedure of the Supreme Court as specifically stipulated in Article 191.
"Parliament enacted the act, which does not in any manner infringe any of the fundamental rights, rather facilitates their enforcement. The act also grants an appeal to one who is aggrieved by a decision of the Supreme Court, which is passed in exercise of the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution."
The judgement observed that a larger bench of the Supreme Court has been conferred with this additional jurisdiction of appeal, which fully accords with the Constitution.
"The act does not in any manner violate the Constitution, it does not undermine the Supreme Court, nor does it compromise the independence of the judiciary."
The judgement concluded that since the court found the act to be fully compliant with the Constitution, there was no need to consider the other points raised by the petitioners because they would have no bearing on the outcome. "This Court does not generally dilate upon academic propositions," observed the chief justice.
In a parting shot at his predecessor and some serving brother judges, the chief justice ended the judgement by stating that this matter could have been decided in the first hearing.
Legal community reacts
Reacting to the detailed judgement, legal expert Hafiz Ahsaan Ahmad Khokhar stated that through this judgement, not only has the Supreme Court accepted the legislative competency of the Parliament under Article 191 of the Constitution on the Supreme Court's internal procedures, but that the Practice and Procedure Act does not, in any way, violate the Constitution, undercut the Supreme Court's authority, compromise the judiciary's independence, or do any of these things. Rather, he said that this law strengthens the judiciary, increases its independence, and ensures the enforcement of fundamental rights.
He maintained that these conclusions would establish new guidelines for the Supreme Court going forward.
Khokhar believed the current ruling would usher in a new era for Pakistani justice while enabling appeals under Article 184(3) of the Constitution. Further, for the first time, the incumbent chief justice of Pakistan has surrendered his powers and functions in favour of collective wisdom through an institutional framework, which must be appreciated.
He hoped that this move would allow for the early resolution of cases at the Supreme Court sooner because the Practice and Procedure Act of 2023 stipulates that applications for causes, appeals, or other matters which claim urgency or request interim relief must be scheduled for hearings within 14 days of an application being filed.
The legal expert further said that the Supreme Court has recognised certain legal principles in a broader aspect and that the Parliament has the right to legislate on matters pertaining to the practice and procedure of the Supreme Court under Article 191 of the Constitution.
In particular, these include how the Constitution does not grant the chief justice the power to decide cases unilaterally or arbitrarily, the chief justice cannot substitute his wisdom with that of the Constitution, nor can the chief justice's opinion prevail over other judges of the top court.