ctober 11 was an important day for the rule of law and legal system in Pakistan. The Supreme Court dismissed a popular political party’s petitions challenging the Supreme Court Practice and Procedure Act 2023 and upheld the enactment. In a split decision, the majority dismissed the petitions against the statute in a brief order, with 10 judges supporting the majority decision and five dissenting.

Politics aside, the law has a number of consequences for the security and sanctity of the legal system and interpretation of the constitution. Amongst other provisions, it gives the chief justice, the senior puisne judge and the third senior-most judge acting together the power to make decisions with regard to suo motu action and judicial appointments that were previously taken by the chief justice on his own.

The law requires that all benches to be formed by a committee of three: the chief justice and two senior judges. The Act also limits the chief justice's authority to take suo motu action under Article 184(3) of the constitution. It requires that all such notices be presented before the same committee. Consequently, suo motu action will be possible only if the committee agrees that the issue involves a basic rights question.

The Act requires the committee to form a bench of at least five SC judges to interpret constitutional provisions. This rule is meant to ensure that constitutional requirements are interpreted fairly and clearly. A chief justice will no longer be able to name a bench in his sole discretion. Those affected by SC orders in suo motu cases will now be allowed an appeal. However, the law shall not have retrospective effect in this regard.

The judgment may have broad consequences for the rule of law in Pakistan, particularly judicial independence.

The Supreme Court Practice and Procedures Act 2023 provides both internal and external checks on the suo motu powers of the Supreme Court through the appeal and committee requirements. The committee can be counted on to uphold integrity and impartiality crucial to judicial performance.

The Act requires the committee to form a bench of at least five judges to interpret constitutional provisions. This rule is meant to ensure that constitutional requirements are interpreted fairly and clearly. A chief justice can no longer choose a bench in his sole discretion.

At issue in the case were the ideas of judicial independence and separation of powers among various branches of government.

In a democracy, the three branches must act separately and independently, the Legislature making laws, the Executive being responsible for enforcing the laws and the judiciary applying the laws. It is hard to imagine a democratic state where the Legislature is not allowed to enact or amend laws in accordance with the Executive’s policies.

The power to take suo motu action under Article 184(3) of the constitution is unique. Many states deny such a power to the supreme courts. Some, like Canada, even forbid the courts from doing so unless expressly allowed by a statute thus ensuring once again a separation of powers. The way some chief justices have used the power in recent history has raised questions about an encroachment on the powers of the Executive branch to suit some populist agendas. If anything the new Act provides a check against such an abuse of power and limits it in order to preserve the separation of powers.

In a democracy, the public and those who appear before the judges must believe that their cases will be heard in line with the requirements of due process and decided transparently. This is only possible if judges and the judiciary are independent of external forces and one another. Judges must base their rulings on relevant facts and law. In discharge of their constitutional duty, they must act fairly and impartially. The judges must be free from pressure from litigants, business interests, the media, politicians and self-interest. They must not let public or media reactions influence their decisions. This does not mean ignoring the tremendous effects that judicial decisions have on the lives of those before them and on topics of major importance to society. Over the last century, the judges’ role in citizen-state disputes has grown with government duties. With expanded responsibilities to safeguard citizens against illegitimate government conduct, the courts must be independent of government.

Many countries, such as the United Kingdom and the USA, prioritise adjudication over any other function of the judiciary. For Pakistan, the new Act is hoped to have a positive effect.

The writer has an LLB (Hons) and an LLM degree from UK. She is an advocate of High Court