Supreme Court strikes down judgments law

ByMalik Nasir Mahmood Aslam

Seasoned social activist


August 20, 2023

Judgments law

Malik Nasir Mahmood Aslam describes an increasing friction

Judgments law – The merits of the case simply take a back seat when its judgment is viewed in the backdrop of its timing that is extremely curious. The Supreme Court struck down the Supreme Court (Review of Judgments and Orders) Act 2023 which expands the scope of a review petition terming it unconstitutional. That the judgement was delivered just a day after the national assembly was dissolved is indeed intriguing and this timing was probably resorted to preclude the possibility of any counter parliamentary measure. The three-member bench of the Supreme Court headed by Chief Justice Umar Ata Bandial and had Justice Munib Akhtar and Justice Ijazul Hasan as its members had earlier reserved its verdict in the case on 19 June with an observation that decision on the case would determine the fate of the Election Commission of Pakistan’s (ECP) review against 4 April verdict of fixing 14 May as the date for holding Punjab Assembly elections.

The background in this respect is that this bill was passed by Parliament on 5 May amid a tussle with the judiciary. The bill, brought to the House through supplementary agenda and the House had allowed its immediate consideration with a majority vote of 32-21. The government had claimed that the bill was aimed to facilitate and strengthen the Supreme Court in exercise of its powers to review judgements and orders. The law added to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases. The particular law was propagated to be aimed at facilitating and strengthening the Supreme Court in exercising its powers to review its judgements and orders.

It expanded the jurisdiction of the court by giving a right to appeal under Article 184(3) which grants the SC powers to issue an order if it considers a question of public importance with reference to the enforcement of fundamental rights involved. Under the law, the scope of a review would be similar to Article 185 which confers appellate jurisdiction to the top court. The provision meant that Nawaz and other parliamentarians, disqualified by the SC under its original jurisdiction, would get the right to appeal their disqualification. However, the opposition saw it as an attempt to reverse the disqualification of PMLN leader Nawaz Sharif.

The SC judgment appears to be a retaliatory measure as is evident by the contents of the judgment that are quite sweeping. It laid down that the law was repugnant to and ultra vires to the Constitution while being beyond the legislative competence of Parliament. The court consequently struck down the law as null and void and of no legal effect. The order said that any attempt by way of ordinary legislation to interfere in the scope of the SC’s powers and jurisdiction, including but not limited to its review jurisdiction, would constitute a wrong and erroneous reading and interpretation of the Constitution. The judgement further said that there was no express authorisation in the Constitution which empowered Parliament to enlarge the SC’s review jurisdiction under Article 188. In addition, the 2023 Act does not enlarge review jurisdiction, it creates a new appellate jurisdiction which has no constitutional basis, sanction or authorisation.

It goes on to say that any legislation interfering with the independence of the judiciary, would by its nature and from its very inception, be unconstitutional, null, void and of no legal effect.It said that a constitutional amendment was needed to convert the court’s review jurisdiction into an appellate jurisdiction. It added that it is a well-recognised principle that ordinary law cannot amend, change, delete of add to the Constitution. The so-called enlargement of the court’s jurisdiction had no constitutional sanction or basis and was not anchored in any provision of the Constitution relating to the judicature or the SC.

Moreover, a bench member, Justice Munib Akhtar penned an additional note, wherein he observed that a review is not an appeal. Indeed, it is quite different and distinct from it and so says conventional wisdom. Justice Akhtar then recalled the history of review and appellate jurisdictions, beginning with the Government of India Act 1935, which he said became the first Constitution for both, the dominions of Pakistan and India. Quoting numerous judgements, he arrived at the conclusion that here was the wisdom that became conventional: a review is not an appeal. He cited Article 184 of the Constitution, which he said deals with the appellate jurisdiction of the Court from judgements, decrees, etc of the high courts. He observed that an appeal — whether granted by right or by the Supreme Court — does not lie on a question of fact but only on questions of law. He concluded that therefore, section 2 of the law clearly goes beyond even Article 185 when it provides for the scope of the appeal as including questions of fact.

Opposing the empowering of the petitioner to have a counsel of choice, Justice Munib Akhtar cited Rule 6 of Order XXVI of Supreme Court Rules 1980, which provides that unless special leave is obtained from the Court, it is only the advocate who appeared at the hearing of the case who will be heard in support of the application for review. He observed that Section 2 of the law sought to transform the nature of the jurisdiction by purporting to alter the scope in relation to judgements or orders under Article 184. But, he continued, that cannot mean that the review jurisdiction can be so altered that it, in substance, is transformed into an appellate jurisdiction. The learned justice then went on to raise questions about members of the bench hearing the review. Noting that the review under Section 2 of the enacted law would have to be heard as though it was an appeal under Article 185 of the Constitution, he recalled that it was a settled and cardinal rule that no judge can hear an appeal from his or her own judgment.

Highlighting that the said section created a dilemma, Justice Munib Akhtar said the only way out of it would be for none of the judges who originally heard the latter to be part of the bench hearing the review petition. However, resultantly, the author of the judgement not being able to be part of the review bench was certainly startling. The learned judge stated that the resulting bench would at one and same time, decide it in terms of two distinct and separate jurisdictions which he said was a startling conclusion. Noting another issue arising from Section 3 of the law, Justice Akhtar observed that the true nature of and intent behind section 2 was nothing other than a right of appeal masquerading as a review. Again, objecting to Section 3, he said that as a result, a full court could never be constituted to hear a matter as any such possibility would stand practically precluded by reason of section 3. He went on to observe that while the enacted law purports only to regulate the review jurisdiction under Article 188, it oversteps that bound and contains and limits, also the power of the CJP. The Weekender


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