ISLAMABAD: The federal government stated in the top court on Thursday that if the Supreme Court (Practice and Procedure) Act 2023 was sustained, verdicts handed down by benches constituted before enactment of the law would be saved as past and closed transactions.

But if the benches are still hearing the cases, then such benches should be reconstituted by a committee of three most senior judges, said a reply filed by Additional Attorney General Chaudhry Aamir Rehman on behalf of the federal government.

Referring to a question put by the full court on Sept 18 that could a right of appeal against judgements arising out of Article 184 (3) be created through ordinary legislation, as opposed to a constitutional amendment, the government contended that the original jurisdiction of the apex court under the provision was sui generis in nature and it cannot be bifurcated into criminal and civil aspects.

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Those aggrieved by judgements under Article 184 (3) may go for a review on the same grounds as are available for review of judgements rendered under Article 185, the reply said.

At the last hearing, the full court had asked the parties concerned to submit written replies on a set of nine challenges to the Supreme Court (Practice & Procedure) Act. The next hearing is due on Oct 3.

On a question whether the regulation of practice and procedure by Parliament undermines the judiciary’s internal independence, the government stated that no restraint could be placed on the institution’s performance and operation.

Independence of judiciary implies independence of judges, institutionally as well as individually, from the executive, the government further stated.

“It means that a judge is independent of pressure.” Aharon Barak, in his book A Judge in a Democracy has written that a judge’s freedom from pressure refers to freedom from external pressure, regardless of the source.

Personal independence is independence from the litigating parties and the public, independence from fellow judges and judges responsible for managing the system, according to Barak.

What the Practice and Procedure Act has essentially set out to do is to ensure independence of the Supreme Court from within. It has introduced a more transparent and democratic system for constitution of benches.

It structures the unbridled discretion previously vested in the Chief Justice of Pakistan (CJP), thereby enhancing the independence of judges, the government’s reply said.

Requiring constitution of a larger bench for hearing petitions by the Supreme Court in its original jurisdiction regarding enforcement of fundamental rights is also not in conflict with the judiciary’s independence, according to the reply.

Wisdom of a larger bench

Larger benches are constituted frequently for the hearing of constitutional petitions under Article 184 (3). But the Act in question envisages uniformity for every such petition and an equal chance for everyone to benefit from the wisdom of a larger bench, the reply said.

The government said the apex court cannot strike down laws on the basis of apprehensions, especially when the law was aimed at strengthening the judiciary’s independence and preventing accumulation of power in the upper echelons of the apex court.

The power to enact law vests in the legislature and must not be compared to the Supreme Court’s power to interpret laws.

Supremacy of judicial law-making finds favour in jurisdictions where an unwritten constitution prevails, the reply said.

Even then, the common law is a mature tree and the judges may trim small shoots, but pruning is a job for parliament.

When this court enunciates or decides a principle of law, it does so by interpreting or expounding upon existing legislation. The moot point, however, is that those principles of law and those interpretations are a declaration and embodiment of the legislature’s intent.

Published in Dawn, September 29th, 2023