he presidential ordinance promulgated to amend the Supreme Court Practice and Procedure Act represents a legal shift with significant implications for judicial autonomy and efficiency. By introducing provisions to curb the discretionary powers of the chief justice and a right to appeal in suo motu cases under Article 184(3), the ordinance seems to be promoting transparency and fairness. However, these changes also introduce risks that need to be examined through the lens of both jurisprudential principles and practical consequences.

Central to the new law is the restriction on the chief justice’s authority to constitute benches and take unilateral suo motu actions. While this is designed to prevent perceived bias or concentration of power, the new framework requiring a three-member committee to make such decisions introduces procedural complexity. This could eventually lead to the erosion of judicial independence. If Legislative or Executive influence begins to shape how this committee operates, it risks exposing the Judiciary to political interference. Historically, judicial independence has been a bedrock principle in constitutional democracies, as demonstrated by early conflicts in England, where the Judiciary’s resistance to royal interference, particularly under Lord Chief Justice Coke, helped establish the importance of an autonomous judiciary. The same concerns resonate here. Limiting the chief justice’s powers without strong safeguards could undermine the judiciary’s role as a check on executive overreach.

Beyond the concern for independence, the risk of politicising the Judiciary further has also heightened. Critics of the ordinance argue that these reforms could prove a means of controlling judicial outcomes, particularly in cases involving political opposition. This is not an unfounded concern in Pakistan’s context, where superior courts have frequently played a central role in resolving politically charged disputes. By restricting the chief justice’s autonomy, the ordinance could entrench political influence, further eroding public confidence in the Judiciary.

Another critical issue lies is the rigidity of the new case prioritisation rules. The requirement that cases be heard in the order they are filed, unless special reasons are provided, may create procedural inefficiencies. Public interest litigation or emergency matters may require swift resolution; this rule risks delaying them if adherence to filing order is rigidly enforced. Moreover, there is a real risk that parties might manipulate the timing of case filings to delay politically sensitive judgments, exacerbating an already strained system. Flexibility is essential for judicial effectiveness, especially in constitutional crises; over-bureaucratising this process could hinder the Judiciary’s role as a protector of fundamental rights.

Pakistan’s courts are dealing with an extensive backlog of cases. Adding more appeals, especially in suo motu cases, risks further overburdening the courts.

The introduction of a new right to appeal following suo motu judgments under Article 184(3) also adds complexity. Prior to the ordinance, suo motu verdicts were final. This allowed swift resolutions on matters of public importance. The appellate process introduces a second layer of litigation, likely to slow down relief by delaying the finality of these decisions. Appeals inherently involve lengthy procedures, including briefing, hearings and deliberations, which can extend the lifespan of cases. This leads to delays in politically sensitive or urgent cases where swift judgments are often necessary. Moreover, some litigants may exploit this appellate process to delay unfavourable rulings, a tactic known in legal systems worldwide where procedural avenues are used to prolong litigation. If litigants perceive that they can stretch out the timeline of a case, especially if larger benches required for appeals are constrained by scheduling, it can lead to significant delays in justice.

Pakistan’s courts are already dealing with an extensive backlog of cases. Adding more appeals, especially in suo motu cases, risks further overburdening the courts. Appeals are resource-intensive, requiring judges to not only review the facts of the case but also assess the legal reasoning behind the original decisions. This could slow down the Judiciary’s ability to process other cases, leading to a cascading effect on judicial efficiency. Comparative jurisprudence offers insights into how appellate systems, if not carefully managed, can overwhelm the courts. In the United Kingdom, for example, the right to appeal is carefully regulated to prevent the courts from being bogged down with excessive appeals. Pakistan’s more open-ended right to appeal in suo motu cases risks a flood of litigation that could strain judicial resources.

The balance between judicial efficiency and procedural fairness is a key issue in legal philosophy. Jurists like Jeremy Bentham have long warned about procedural complexities that delay justice. Hence his famous adage: “Justice delayed is justice denied.” Bentham’s utilitarian philosophy stresses that the legal system should prioritise efficiency and swift delivery of justice to serve the greater good. In contrast, thinkers like Ronald Dworkin advocate for rights-based jurisprudence, suggesting that fairness and accountability in decision-making should take precedence, even if it results in delays. Dworkin would likely view the appellate process as a necessary safeguard to ensure that justice is not only done but also seen to have been done. However, this approach must be balanced with the practical realities of Pakistan’s overburdened judiciary. A purely rights-based approach, without consideration for efficiency, risks overwhelming the courts.

The introduction of appeals in suo motu cases also mirrors challenges faced in other jurisdictions with complex appellate systems, such as the United States and the United Kingdom. In the US, federal courts often experience significant delays due to lengthy appellate processes in high-stakes litigation. In the UK, the right to appeal on points of law is strictly regulated to avoid overwhelming the courts. Pakistan’s more liberal right to appeal in suo motu cases could lead to a situation where politically sensitive cases are delayed by prolonged appellate litigation.

While the ordinance introduces reforms intended to enhance transparency, it carries significant risks of undermining judicial independence, politicising the Judiciary, delaying critical cases and overburdening the courts. The success of these reforms will likely depend on how they are applied and whether the Judiciary can maintain its autonomy in the face of potential political pressures.

The writer is an advocate of High Court, a founding partner at Lex Mercatoria and a visiting teacher at Bahria University’s Law Department. She can be reached at minahil.ali12@yahoo.com