I have closely followed on the internet the proceedings before the full bench of the Pakistan Supreme Court, and the observations made by you during the course of the hearing, and would like to place before you my own view.
The Pakistan Parliament enacted the Supreme Court ( Practice and Procedure ) Act 2023. Section 2 of the Act gives the power to constitute benches of the Supreme Court to a committee of 3 senior most judges of the Court, their decisions to be taken by the majority on the committee.
The validity of this provision is under challenge before a full bench consisting of all of you 15 judges presently in the Court.
I submit the provision is unconstitutional.
No doubt Article 191 of Pakistan’s Constitution states ” Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court ”.
A literal and bare reading of this provision makes it appear that Parliament can make laws regulating the practice and procedure of the Court overriding the rules framed in this regard by the Court, since Article 191 makes the rules made by the Court subject to any law. Hence on a literal interpretation of Article 191 the Act seems to be well within the power of Parliament to enact.
However, it is well settled that a provision in the Constitution must not be read in isolation, but along with other provisions and the Constitutional scheme, as well as long standing conventions.
In State vs Ziaur Rehman, 1973, the Pakistan Supreme Court observed :
” In the case of a Government set up under a written Constitution, the functions of the State are distributed amongst the various State functionaries and their respective powers defined by the Constitution. The normal scheme under such a system, with which we are familiar, is to have a trichotomy of powers between the executive, the legislature and the judiciary ”.
Thus, the separation of powers doctrine of Montesquieu, as mentioned in his book ‘The Spirit of Laws’, has been accepted by the Court. The 3 organs of the State, the legislature, the executive, and the judiciary, are coordinate organs, each having their own domain, none having supremacy over the others, and none entitled to encroach into the domain of another ( see Indian Supreme Court decision in Divisional Manager Aravali Golf Club vs Chander Haas, 2007, paragraphs 19-21, 23 and 24 ).
The decision in Ziaur Rehman’s case therefore implicitly declares the independence of the judiciary, and this view was reiterated by the Supreme Court in Nadeem Ahmed vs Federation of Pakistan, 2009 vide para 12.
The Supreme Court of Pakistan framed its rules in 1980, and Order 11 thereof gives power to the Chief Justice to constitute benches.
However, this was not a new power given by the rules to the Chief Justice, but was only a recognition of a long standing convention prevailing both in England and in undivided India, as well as in Pakistan even before the 1980 Rules were framed, that the Chief Justice is the master of the roster, and has the sole power to constitute benches. Of course, in doing so he may consult any of his colleagues or even senior lawyers, but he is not legally bound to do so.
There are conventions which are part of the Constitution, though unwritten e.g. that the British King acts on the advice of the Council of Ministers and not at his own discretion, which has been followed in India and Pakistan where the President acts on the advice of the Council of Ministers. Another unwritten convention is the doctrine of precedents, which states that decisions of higher courts or larger benches are binding.
Though it has not been expressly mentioned in the Pakistan Constitution that the judiciary is independent, this follows from the doctrine of separation of powers recognised in Ziaur Rehman’s case, and the long standing convention to that effect.
Consequently, Article 191 cannot be read literally and in isolation. It has to be interpreted in the light of the Constitutional scheme, as well as the Constitutional conventions. How the Supreme Court is to function is for the Court alone to decide, just as how the legislature or executive are to function is for those organs to decide.
Of course if the judges in an administrative meeting decide to confer the power to constitute benches to a committee, and not leave it solely to the Chief Justice, they can do so, but this cannot be done by Parliament.
If it is contended that this can be done by Parliament by reading Article 191 literally, it follows that Parliament can make a law that a certain type of case or cases will be heard by a bench of Justice A and Justice B, or even that Parliament will itself fix the daily roster of the Supreme Court. What then remains of the independence of the judiciary ? And is it not an encroachment by the legislature into the domain of the judiciary ?
It may be asked whether such an interpretation would make the words ‘and law’ in Article 191 redundant. The answer is that Parliament can make laws relating to the Supreme Court practice and procedure which have financial implications, since it will be the govt which will have to bear the financial burden, but not otherwise.
I submit that in view of Chief Justice Qazi Faez Isa’s statement that he will consult his 2 seniormost colleagues in constituting benches, the best course of action now is that the case before the Supreme Court challenging the validity of the Supreme Court ( Practice and Procedure ) Act should be adjourned sine die and put into the back burner, allowing the stay order passed by the earlier 8 member bench to continue indefinitely or until Parliament repeals the Act
Justice Markandey Katju
Former Judge, Indian Supreme Court