A majority of the analysts approve of the top court’s ruling but some fear it could give “unconstitutional powers” the green light to intrude into judicial space.
In a majority verdict, the Supreme Court (SC) on Wednesday sustained the controversial SC (Practice & Procedure) Act, 2023 — a law that envisions the formation of a committee of three senior judges to form benches on cases involving constitutional matters of public importance — and declared it “constitutional”.
The top court also upheld a section of the law that envisages the right to appeal in future cases, while rejecting the right to appeal in cases already decided.
The verdict comes after all 15 judges of the SC conducted five hearings on petitions challenging the practice and procedure law, that were streamed live on television — another first.
Here’s what politicians and lawyers had to say about the apex court’s judgement.
‘Welcome step’
PML-N leader Shehbaz Sharif — during whose tenure the practice and procedure law was passed by the Parliament — called today’s decision a “welcome step”.
“It not only democratises the workings of the Supreme Court itself but also shows due respect to the Parliament, which represents the people of Pakistan.
“It is important to mention that, according to legal experts, the specific clause under discussion concerning appeals against past judgments does not affect Mian Nawaz Sharif,” he said in a post on X.
Former minister and PPP leader Sherry Rehman said today’s proceedings and verdict had enhanced “transparency and faded image of the superior court”.
“It is also an important step forward for Parliament’s supremacy in its first obligation of making laws,” she said on X.
Meanwhile, in a statement released by its Central Media Department, the PTI said today’s verdict had resulted in disappointment for a political party, apparently referring to the PML-N.
“After the majority verdict of the SC, the possibilities of conspiracies against Sadiq and Amin Imran Khan have died,” it stated, adding that now “fake and false” cases against the PTI chairman could not impact the “certificate of his honesty”.
‘Verdict doesn’t prevent Nawaz from contesting elections’
Lawyer Usama Khawar called the decision “truly unprecedented and remarkable in many significant steps”.
“Firstly, the manner in which the proceedings were conducted was remarkable. It was for the first time that a public official promised transparency to the public and he delivered despite significant potential risks to his own authority and privileges. He presented the people of Pakistan with the good, the bad, and the ugly of our superior judiciary,” he told Dawn.com.
Khawar highlighted that Chief Justice of Pakistan (CJP) Qazi Faez Isa risked “exposing his left flank by forming a full court so early in his career”, noting that “public defeat” i.e., becoming a minority in front of the camera would have severely undermined his authority.
“Similarly, open questioning of the CJP’s authority to conduct the proceedings and the acrimony and bickering amongst judges in the full glare of camera would have also severely undermined his authority,” he said.
“Thirdly, it is unprecedented that a person in power has gone to such a great length and taken such risks to divest his own powers and privileges. This is remarkably rare in public affairs in the world arena and even rarer in Pakistan,” Khawar said, adding that the only remotely comparable example was then-President Asif Ali Zardari’s handing over of the presidency’s power to the parliament and prime minister through the 18th Amendment.
He termed CJP Isa’s achievement even more remarkable than Zardari’s at a personal level.
“President Zardari was comfortable in his skin and enjoyed complete control of his party and electoral base — with the PPP solidly behind him and no challenger to him in sight in the party or his base in Sindh — while Justice Isa’s is not secure, as he found out in these proceedings — not only was he constantly challenged by Justice Munib Akhtar but he also found himself in minority on the issue of granting of retrospective right of appeal,” the lawyer added.
He further said that, in the short-run, today’s judgment does not immediately prevent PML-N supremo Nawaz Sharif — who is expected to return to Pakistan in 10 days — and Jahangir Tareen from contesting elections because of the previous government’s amendment to Section 232 (Disqualification on account of offences) of the Election Act, 2017.
The amendment limits the disqualification period under Article 62(1)(f) to five years.
“However, this amendment contradicts the Supreme Court’s judgment (authored by ex-CJP Umar Ata Bandial) that holds the disqualification under Article 62(1)(f) for life,” he said.
Khawar added that to prevent the elder Sharif from contesting the election, a constitutional court must first declare the amendment unconstitutional.
“Until then Nawaz is technically eligible to contest elections. The other option available to SC is to take up the petition of the Pakistan Bar Council challenging the lifetime disqualification of parliamentarians. This might not be as easy, legally and politically, as it might sound,” he added.
‘Hard to identify a winner’
“The fact that the process was publicly available for viewing is to be appreciated; in that we have finally let some sunlight in upon what must be known to the public,” lawyer Abdul Moiz Jaferii said.
“The CJP could have simply sat the full court on its administrative side and updated the Supreme Court rules, rendering these proceedings effectively moot. He could have put together ten judges and undone Justice Munib Akhtar’s order,” he said.
But instead, the lawyer highlighted, the CJP “let everyone see the proceedings — which for the most part he himself must have found disagreeable — and allowed every SC judge to have a vote”.
“This is all commendable,” Jaferii added.
Talking about the decision itself, he said it was hard to identify a winner.
“Nawaz Sharif loses his ability to appeal his disqualification. The PTI lost most of its petitions. The court lost its ability to regulate its rules and procedures. The Parliament stands exposed by the minority as a malafide transgressor into the domain of the judiciary. Shehbaz Sharif is suddenly looking good in his suit. Shoes shined and all.”
“In the end, the house always wins,” he concluded.
‘Not a win for Parliament, nor for the judiciary’
“Pakistan is a parliamentary system, and its elected representatives have the full right to change whatever they like, including the procedure of the Supreme Court — subject, of course, to what the court decides,” said Barrister Asad Rahim Khan. “By dint of the vote, they get to decide what the law should be,” he added.
“But it is in keeping with parliamentary sovereignty that a law claiming to promote the collective wisdom of the judicial branch should also have been brought about by the collective wisdom of the legislature.”
For Asad, “It’s not a win for Parliament when the Constitution is amended by a rump assembly fearful of elections, instead of a two-thirds majority.
“Nor is it a win for judicial independence when a desperate law is passed to declaw the suo motu, right after the judges ordered polls be held in 90 days.”
‘Green light to intrusion into judicial space’
Meanwhile, Barrister Rida Hosain said that, at its heart, the case was about the independence of the judiciary and the core question was whether the Parliament could regulate the internal workings of the SC.
“Crucially, can Parliament tell the Supreme Court which judges are to constitute benches? The majority has said yes, and in effect, given a green light to obvious intrusion into the judicial space,” she told Dawn.com.
Hosain said that in the future, the Parliament can legislate on a whole host of matters relating to the practice and procedure of the apex court.
“If Parliament can choose the judges it wants on the committee, it is also competent to add or replace judges on the committee. The chief justice repeatedly called questions about the future ‘conjecture’.
“With respect, it is not. It is a matter of principle. As a matter of principle, the majority has accepted that the Parliament now sits over the Supreme Court in terms of its practice and procedure,” she said.
Hosain went on to say that the majority had also accepted that going forward, there would be a right of appeal against decisions of the Supreme Court handed down under Article 184(3) of the Constitution.
“The Constitution does not provide for any such appeal. If the Parliament wanted to create a new constitutional jurisdiction, it should have done so through a constitutional amendment. The difference between ordinary legislation and a constitutional amendment is not a numbers game.
“The Constitution represents the will of the people for all time (not just their elected representatives at a particular moment). If it is to be altered, the people have said it can only be done through a constitutional amendment and a two-thirds majority,” the barrister added.
Ruling may augment influence of ‘unconstitutional players’
Lawyer Basil Nabi Malik said the verdict appeared to balance the various intricacies and complexities involved in the case, whether it was in relation to the Parliament’s competence to legislate on the issue, the constitutionality of the appellate provision in it, or the overall impact on the independence of the judiciary
“However, it is worthy to note that although it may be commendable that a serving CJP thought it fit to dilute his own powers whilst in office, this verdict also raises some concerns.”
The lawyer said that in a country which was “well known for extra-constitutional interferences and unconstitutional influences from behind the scenes, how will this relinquishment of power over practice and procedure, as well the dilution of the CJP office itself, affect the independence of the judiciary in practical terms?”
“How much ground bona fidely ceded today would augment the power of extra or unconstitutional players? And, will the dilution of the CJP’s office make the judiciary more transparent and powerful, or will it weaken it and open its internal mechanisms to attempted manipulations and influence? These are questions which shall be answered in due time,” Malik stressed.
‘Not person-specific’
Lawyer and columnist Salaar Khan recalled that many people had called the practice and procedure law a “person-specific law” enacted to provide an appeal to former prime minister Nawaz Sharif.
“They may now seek some solace in knowing that the only part of the law that hasn’t been upheld is the right of appeal in cases already decided,” he said in a post on X.
Lawyer Muhammad Ahmad Pansota said Nawaz could not benefit from today’s judgment.
“He cannot file an appeal against his Panama disqualification. However, through an act of Parliament, disqualification under 62(1)(f) has been limited to five years, which have lapsed. But interestingly, this legislation is in direct conflict with a Supreme Court judgment. It will get interesting once he files his nomination papers in the elections,” he said.
