The bench, the bill and the constitution

The National Assembly and Senate, in a joint sitting, have reconsidered and passed the Supreme Court (Practice and Procedure) Bill 2023 (‘Bill’). Normally, it would become an act of parliament within ten days, but an eight-member bench of the Supreme Court has suspended that possibility.

Two features of the Bill invited this unusual intervention. One, it takes away the power of the chief justice to form benches, and confers it on a committee of three senior-most judges (including the chief justice). Can that constitute interference with the independence of the judiciary? No, as the power still vests in the Supreme Court, not a third party. Two, the Bill creates a right of appeal against judgments of the Supreme Court under Article 184(3) of the constitution. Incidentally, both changes reflect longstanding demands of the bar councils, but there is an opinion that these departures (particularly the right of appeal) can only be accomplished through a constitutional amendment. Let us consider the arguments.

The first argument draws on Article 191 of the constitution: “Subject to the constitution and law, the Supreme Court may make rules regarding the practice and procedure of the court.” It is argued that Article 191 deals with rules of procedure, whereas the right of appeal is a substantive right and cannot be conferred under this Article. If so, this must mean that the Supreme Court (through appropriate amendment in its rules) would also not be able to create a right of appeal, as its powers under Article 191 relate to “practice and procedure of the court” and if the right of appeal is a substantive right, it would fall outside that scope.

But there is a flaw in the argument: it assumes that Article 191 restricts the power of parliament to legislate on substantive matters pertaining to the Supreme Court, whereas it only places a restraint on the power of the Supreme Court to frame rules regarding its ‘practice and procedure’ – the restraint is that such rules cannot override the constitution and law.

To illustrate, if a school’s regulations stipulate that the class-teacher may allow students to leave early, subject to any instructions issued by the principal regarding school-timings, that cannot mean that the principal is only authorized to issue instructions regarding school timings and regarding no other matters pertaining to the school! In the same vein, if the constitution means to restrict the power of parliament to legislate on substantive matters pertaining to the Supreme Court, such restriction must be located elsewhere in the constitution and cannot be drawn from Article 191 (which only restricts the power of the SC).

This brings us to the second argument, which is based on entry 55 in the Federal Legislative List. It empowers the federal parliament to make laws in relation to the jurisdiction and powers of all courts, except the Supreme Court. Regarding the Supreme Court, parliament is empowered to make laws: “to such extent as is expressly authorized by or under the constitution, [regarding] the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers.” The Supreme Court paraphrased this in the Baz Muhammad Kakar case as follows: “the constitution provides for the enlargement of the jurisdiction and to supplement the powers of the Supreme Court, and never conceived about curtailing the powers of the Supreme Court.”

The question is: does the Bill curtail the powers of the Supreme Court? Merely by allowing an appeal against its orders passed in original jurisdiction? That would be the case if the appeal were to be before a third party, but not if the appeal is to be heard by the Supreme Court itself. Conferring the right of appeal on the SC itself is an enlargement of the jurisdiction of the SC, or conferral of supplemental powers; in either case in relation to a jurisdiction “as is expressly authorized by or under the Constitution” (namely Article 184(3)). By no stretch can it be considered a curtailment of the jurisdiction of the SC. One cannot therefore agree with the suspension order: “There appears to be no authorization by or under the constitution, let alone an express one, as allows parliament to confer an appellate jurisdiction on the court of the sort now sought to be created.”

Informatively, in the Baz Muhammad Kakar case, the Supreme Court was considering the vires of the Contempt of Court Act 2012, which was declared to be unconstitutional on the basis that, while Article 204 of the constitution empowered parliament to regulate the powers of the Supreme Court in contempt matters, the Act of 2012 effectively curtailed those powers (for example: by defining contempt in a more restrictive way than Article 204). By striking down the Act, the Supreme Court restored the Contempt of Court Ordinance 2003, which contains the right of appeal against judgments of the Supreme Court in contempt matters.

Far from striking down the right of appeal as unconstitutional, however, the Supreme Court judgment celebrated several instances where that right of appeal was exercised: “In the Dogar case, the original order of framing of charge against the former judges of the superior courts was passed by a 4-member bench of this court. The said order was challenged by means of intra-court appeal which was heard by a larger bench comprising 7 Hon’ble judges. In the Justice Hasnat case the original order was passed by 4-member bench of this court and the intra-court appeal was heard by a 6 Hon’ble judges. …” Thus, it is not the first time that a right of appeal is provided against original decisions of the Supreme Court, and if this was not problematic earlier, why should it take on that dimension now.

Must we, as a matter of principle, interpret the constitution so that the power of the chief justice to form benches is not curtailed? Or that the right of appeal in matters taken up by the Supreme Court under Article 184(3) is denied to the aggrieved party? On the contrary. Article 10A of the constitution recognizes the following fundamental right: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

But can there be fair trial or due process without one right of appeal, at least? There cannot. Similarly, if the court of first instance is constituted entirely to the whims of one person (the chief justice), this too is far more likely to impact the fairness of trial than if the power to constitute benches is distributed more broadly. From this perspective as well, the Bill is consistent with the constitution.

Why have eight members of the SC suspended the operation of the Bill, then? To me, it is disappointing that they have done so – as is the fact that the chief justice (whose powers are impacted) has chosen to head the bench. Because of the surrounding noise, these judges may even be ‘reassured’ that their order has been well received by certain circles, but when that noise subsides, which it will in due course, this may not be an order they will be most proud of. This at least is my expectation.

It is well documented that successive chief justices of the SC have consistently constituted benches of like-minded judges in important political cases. The notorious decision imposing life-time ban on Mian Nawaz Sharif, and the equally indefensible judgment in the Article 63-A matter, would both have been very different if the benches were constituted fairly and evenly. But it is on account of such persistent misuse of power that a three-member bench headed by Justice Faez Isa finally restrained the chief justice from forming benches, until the Supreme Court rules were suitably reframed.

Once that order was in the field, it was in clear violation of the order that the chief justice first constituted a six-member bench (of like-minded judges) to overrule the order (which amounts to exercise of appellate jurisdiction, which is not there at present), and also then constituted the present eight-member bench to suspend the Bill. However, if the very constitution of these benches is illegal (on account of being against the order of the three-member bench but also on account of being demonstrably unfair and one-sided), this should also render any orders passed by these benches a nullity.

This leaves the door open for the following possibility: The Bill could be notified in due course, despite the suspension order by the eight-member bench (if that is treated as a nullity), and once it is notified, the three senior-most judges (or any two of them) could constitute the bench to hear the petitions challenging the Bill. If that course is adopted, a full court (barring the chief justice, and one judge who is seen as controversial) could be constituted to decide the petitions.

The writer is a Lahore-based lawyer. He can be reached at: salmanchima@gmail.com