On March 1, a five-member bench headed by Chief Justice of Pakistan Umar Ata Bandial ordered the Election Commission of Pakistan (ECP) to hold elections for the provincial assemblies of Punjab and Khyber Pakhtunkhwa within 90 days. The Supreme Court had announced a split verdict of 3-2 with judges within the bench raising concerns over the chief justice of Pakistan’s discretionary powers. This controversy has led to the introduction of the Supreme Court (Practice & Procedure) Act, 2023, passed by the Parliament, which has elicited support from certain quarters, while drawing criticism from others.
The bill in question includes provisions for the constitution of benches, exercise of original jurisdiction, interpretation of the Constitution, and the right to appeal. The Act mandates that every cause, appeal, or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and the two most senior judges, in order of seniority. It also establishes a process for appeal, which shall lie within thirty days from an order of a bench of the Supreme Court exercising jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court, and such appeal shall be fixed for hearing within a period not exceeding fourteen days.
According to the new Act, whenever a cause, appeal, or matter is brought before the Supreme Court, the chief justice of Pakistan and the two most senior judges will decide as to which judges will be assigned to hear and dispose of the case. The order of seniority will be followed in selecting the judges for the said committee, with the most senior judges given priority. It outlines the process by which benches are to be formed in the Supreme Court of Pakistan to hear and decide cases, ensuring that the most senior judges are given a prominent role in the process.
The primary object of the Supreme Court (Practice & Procedure) Act, 2023 is the realignment of powers and authority within the SC, and not curtailing its jurisdiction. The apex court is not just composed of the Chief Justice, but also other judges who could potentially take action on cases.
Undoubtedly, Article 191 grants the Supreme Court the authority to make rules regulating the practice and procedure of the court, but this power is subject to the limitations imposed by the Constitution and other laws. One such limitation is that the Parliament, which is responsible for making laws, can create rules regarding the constitution of benches in SC through legislation. This means that the Parliament can pass a law that specifies how the benches in the court should be constituted, which would then become a part of the legal framework governing the functioning of the court.
The Act further specifies that before any matter invoking the exercise of the Supreme Court’s original jurisdiction under Article 184(3) can be taken up by the court, it must first be placed before the Committee for examination. If the Committee determines that question of public importance with reference to fundamental rights specified in the Constitution is involved, it will then constitute a bench of not less than three judges for adjudication of the matter which may also include members of the committee. In addition, the Act also recognizes that matters involving the interpretation of constitutional provisions are particularly complex and important. Therefore, the requirement is to constitute a bench of not less than five judges by the abovementioned committee in order to ensure that these cases are heard by a diverse and experienced group of judges, who can provide a thoughtful and nuanced analysis of the constitutional issues involved. Furthermore, section 5 of the Act is related to appeal which indicates the procedure for filing an appeal within thirty days to a larger bench of the Supreme Court against the order passed under article 184(3) of the Constitution. The appeal must be scheduled for a hearing within a period of not more than fourteen days. An individual who has been adversely affected by an order issued under clause (3) of Article 184 of the Constitution, prior to the enactment of this act, also has the right to appeal. However, such an appeal must be filed within thirty days of the commencement of this act.
Entry 55 of the Fourth Schedule, Part 1 of the constitution of Pakistan specifies that the Parliament of Pakistan has the power to make laws regarding the jurisdiction and powers of all courts, except the Supreme Court, on certain matters listed in the Constitution. However, any law made by the Parliament to enlarge the jurisdiction or confer supplemental powers on the Supreme Court must be authorised by the Constitution. Nevertheless, it is imperative to align it with Clause 2 of Article 175 of the Constitution which stipulates that no court is allowed to exercise its powers and authority beyond what has been explicitly granted to it by either the Constitution or any law passed by the Parliament. Consequently, although Constitution limits the legislature’s power over the Supreme Court in certain cases, it also allows the legislature to determine the cases that fall under the Supreme Court’s jurisdiction.
In India, a Constitution Bench of the Supreme Court is required to decide on matters of law that require interpretation of the Constitution or involve significant legal questions. Such a Bench must involve a minimum of five judges. A Constitution Bench can also be constituted when two or three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, or when a later three-judge bench doubts the correctness of a judgment delivered by a former bench and decides to refer the matter to a larger bench for reconsideration.
The primary object of the Act is the realignment of powers and authority within the SC and not curtailing its jurisdiction as the Supreme Court in Pakistan is not just composed of the Chief Justice, but also other judges who could potentially take action on cases. By involving more than one judge in important cases, the law would ensure that decisions are made through a collaborative effort and not the sole prerogative of a single judge. The creation of a judges’ committee to decide which judges would hear the case would provide a structured and impartial process for selection. Besides, the right to appeal against the decision of a single judge to a larger bench would ensure that the decision-making process is fair and transparent. Consequently, it is beneficial in promoting transparency, fairness, and collaboration in the judicial system.
The writer is a legal intern based in Peshawar and holds a BS-Law degree from Edwardes College, Peshawar.
 Act, 2023, passed by the Parliament, which has elicited support from certain quarters, while drawing criticism from others.){kind=link}