Justice Ayesha A. Malik of the Supreme Court has declared the Supreme Court (Practice and Procedure) Act 2023 unconstitutional, ruling that parliament lacks the legislative competence to enact such a law, making it ultra vires of the Constitution.
In an additional note regarding the practice and procedure case, Justice Malik asserted, “The rule-making power under Article 191 of the Constitution falls exclusively within the domain of the Supreme Court and is directly linked with the independence of the judiciary.”
In a previous split decision by a 15-judge full court of the Supreme Court, the law, made by the PDM coalition, was upheld to regulate the affairs of the top court. However, a caveat was added that the appeal provided against decisions taken under Article 184(3) would not be applicable retrospectively.
In a 32-page note, Justice Malik emphasized that the Supreme Court had previously held that the independence of the judiciary was a fundamental right. Issues relating to the independence, structure, and functioning of the judiciary were considered matters of public importance. The apex court also held that questions regarding the independence of the judiciary and access to justice would always be matters concerning the public at large.
Regarding the formation of the full court, she stated that the basic question remained unanswered regarding the right of appeal under Section 5 of the Act. With all judges sitting in a petition under Article 184(3) of the Constitution, the right of appeal granted under Section 5 of the Act became redundant. This meant that a party who could have availed the right of appeal under the Act would no longer be able to do so since the full court heard the matter. “It goes without saying that the right of appeal is a substantive right and, in this case, a statutory right granted by the legislature for a very specific purpose which is to provide a remedy to a party in the face of a petition under Article 184(3), the order of which would attain finality,” Justice Malik observed.
Justice Malik stated that the statute granted a right of appeal which the Supreme Court could not deprive a party of. By doing so, the legislature had encroached upon a core function of the Supreme Court, which is against the principles of independence of the judiciary and the separation of powers.
Similarly, Justice Shahid Waheed, in his note, emphasized the importance of the courts’ independence and autonomy, stating that it was necessary for the courts to perform their functions in an atmosphere of independence, free from all kinds of interference from within or outside. Autonomy was not a matter of compromise, as it was the soul and inner strength of the Supreme Court, he said.
He added that the justice delivery system was the bedrock of the rule of law. In the absence of an independent, effective, and efficient court system, it would not be possible to sustain the rule of law in the country, Justice Waheed said. Therefore, Article 175(3) mandated that the judiciary be separated from the executive.
Contrarily, the effects of the Act lead to an irresistible conclusion that the act is an impediment to the free and efficient functioning of the Supreme Court, which is necessary to guard the Constitution. Therefore, on this count as well, the act cannot be sustained, he said.
