SC strikes down review of judgements law, terms it unconstitutional

The Supreme Court (SC) on Friday struck down the Supreme Court (Review of Judgments and Orders) Act 2023, which expands the scope of a review petition, terming it unconstitutional.

A three-member SC bench — comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar and Justice Ijazul Ahsan — had reserved its verdict in the case on June 19 with an observation that decision on the case would determine the fate of the Election Commission of Pakistan’s (ECP) review against April 4 verdict of fixing May 14 as the date for holding Punjab Assembly elections.

The law is “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 detailed verdict, a copy of which is available with Dawn.com, said that the law was “repugnant to and ultra vires the Constitution” while being beyond the legislative competence of Parliament. “It is accordingly struck down as null and void and of no legal effect,” the order said.

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,” the order said.

It further said 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 is a well-recognised principle that ordinary law cannot amend, change, delete of add to the Constitution,” the order said.

The order said that 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.

‘Verdict to have no impact on Nawaz’s disqualification’

Meanwhile, outgoing Law Minister Azam Nazeer Tarar said that the apex court’s verdict would have “no impact” on the cases pertaining to the disqualification of former premier Nawaz Sharif.

Speaking to Geo News shortly after the verdict was announced, Tarar termed the verdict “unfortunate”. “It is not a good tradition if courts will repeatedly interfere in Parliament’s workings and give verdicts that impair its independence,” he said.

When asked if the verdict could cause a delay in Nawaz’s expected return, Tarar said, “Not at all.”

He then referred to an amendment made to the Elections Act, which he said was “sort of a unanimous legislation”. The amendment limited disqualification of lawmakers to five years with retrospective effect.

The minister went on to argue that extending the disqualification period would “offend” the fundamental rights of a person as “taking part in politics, going into the public, asking for votes from the public are fundamental rights”.

Tarar further asserted that Nawaz and “dozens of others disqualified only in the cases of [Article] 184(3) are now, after five years, eligible to take part in elections under Article 232 (disqualification on account of offences) of the Elections Act”.

Recalling that the bill for amending the Elections Act was passed by the Senate amid an uproar, he insisted that the law was not “person-specific — just for mian Nawaz Sharif sahib — but for the benefit of many others so that justice can be served”.

“So this [verdict] has no impact relating to the cases of Nawaz Sharif sahib,” he said.

The minister highlighted that the timing of the verdict created a “perception” that the development could be considered as “taking advantage of the Parliament’s absence”.

He added that the verdict was announced after the dissolution of the National Assembly, meaning the law could not be referred back to it, and the “Parliament cannot immediately enact it again”.

Review of judgments law

The bill was passed by Parliament on May 5 amid a tussle with the judiciary. The bill, brought to the House through supplementary agenda, was moved by Senator Irfanul Haque Siddiqui, who is believed to be a close confidant of PML-N supremo Nawaz Sharif. 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. However, the opposition saw it as an attempt to reverse the disqualification of PML-N supremo Nawaz.

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 provision meant that Nawaz and other parliamentarians, disqualified by the SC under its original jurisdiction, would get the right to appeal their disqualification.

It should be noted that apex court’s verdict comes a day after Prime Minister Shehbaz Sharif said Nawaz would return to Pakistan next month, though he didn’t give an exact date.

Called the Supreme Court (Review of Judgements and Orders) Act 2023, the law is aimed at facilitating and strengthening the SC in the exercise of its powers to review its judgements.

The act asked to enlarge the jurisdiction of the apex court as expressly provided under Article 188 of the Constitution, which empowers the apex court to review any judgement and to ensure the fundamental right to justice by providing for meaningful review of judgments and orders passed by the SC in the exercise of its original jurisdiction under Article 184(3).

Under Section 2 of the act, the scope of the review, on both facts and law, will be the same as an appeal under Article 185 of the constitution. Section 3 says that a review petition will be heard by a bench larger than the bench which passed the original judgement or the order. Likewise, Section 4 empowers the petitioner filing review to appoint any advocate of the Supreme Court of their choice for the review petition.

Section 5 says that the right to file a review petition will also be available to an aggrieved person against whom an order has been made under Article 184(3) of the Constitution prior to the commencement of this act. However, the review petition, under this section will be filed within 60 days of the commencement of the act.

Section 6 says the review petition will be filed within 60 days of the passing of the original order, adding the provisions of the act will have overriding effect notwithstanding anything contained in other laws, rules or regulations for the time being in force or judgement of any court, including the Supreme Court and the high court.