Apex Court reserves verdict on pleas challenging review of judgments law
ISLAMABAD, June 19 (SABAH): The Supreme Court of Pakistan on Monday reserved its verdict on a set of pleas challenging the recently-enacted Supreme Court (Review of Judgments and Orders) Act 2023, which expands the scope of a review petition.
A three-member bench headed by Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar heard a set of appeals challenging the review judgments law and the Election Commission of Pakistan’s (ECP) review against the verdict fixing May 14 as the date for holding Punjab Assembly elections.
At the previous hearing, the CJP had observed that laws like the Supreme Court (Review of Judgments and Orders) Act, 2023 should have been enacted after taking advice from people like the attorney general for Pakistan (AGP), who have experience with litigation.
He had said the apex court would welcome any remedy provided in respect of its orders or judgments given under Article 184(3), which allows the Supreme Court to assume jurisdiction in matters of public importance, but added that “we expect that such laws should be formulated carefully”.
During Monday’s hearing, Attorney General for Pakistan Mansoor Usman Awan and Pakistan Tehreek-e-Insaf lawyer Senator Barrister Syed Ali Zafar concluded their arguments in the case after which the apex court reserved its verdict.
“We will announce the verdict after discussing it among ourselves,” Justice Bandial said. “Let’s see what happens.”
At the outset of the hearing on Monday, the Attorney General for Pakistan Mansoor Usman Awan resumed his arguments and contended that Article 188 of the Constitution — which states that the SC has the power to review any judgment pronounced or any order made by it — did not limit the scope of a review.
“Extending the scope of review in cases pertaining to Article 184(3) is not discriminatory,” he stated, highlighting that appeals were filed in the SC against decisions taken by high courts or tribunals.
“But a case linked to Article 184(3) comes directly to the apex court,” Awan said.
Article 184(3) of the Constitution 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.
Meanwhile, the CJP clarified that the SC had not opposed extending the scope of the review. “The question is on the manner in which the scope of review was extended,” he said.
Justice Bandial also pointed out that the Indian Supreme Court did not give the right of appeal in such cases. “We don’t understand the reason for extending the scope of review.”
For his part, the AGP said that the top court had the power of review under Article 188 of the Constitution and there was “no limit” as per the law. “But cases and appeals under Article 184(3) cannot be treated in the same way,” he argued.
At that, the top judge remarked that lawmakers had the power to legislate but at the same time asked how review and appeal can be viewed as the same.
“The court has to keep facts in consideration,” Justice Bandial said. “If the power of review is extended, will it not be discriminatory?”
The AGP replied that there were several decisions of the Supreme Court regarding the legislative power of the Parliament. “A separate jurisdiction has been kept for review in cases pertaining to Article 184(3).”
Awan further stated that the impression that some people were being exploited by the right of review was incorrect. He also said that the facts of the case would not be altered by extending the scope of review.
“In review [cases], the aggrieved party must be allowed to raise every legal point. Even those legal points that were not raised earlier can’t change the facts of a case,” the AGP stated, adding that even the Indian SC had accepted raising new points in the review.
At one point during the hearing, Justice Akhtar asked if the AGP wanted the court to omit the word ‘appeal’ from the law.
“I have not reached to that point yet,” the attorney general replied, admitting that the wording of the review judgments law was not the best and there were some “issues” with its language.
Continuing his arguments, the AGP said that if the scope of Article 184(3) had been extended, the scope of review should have been increased as well.
“Earlier, the judges who had issued the verdict could also become a part of the larger bench hearing the review,” he recalled, adding that the constitution of the bench still lay with the SC.
“So, if a judgment has been given by a three-member bench, can a four-judge panel hear the review petition,” Justice Akhtar asked here.
To that, the AGP said: “Larger means larger, no matter how many judges.”
Subsequently, the CJP said that the court was discussing constitutional jurisdiction. He added that in an appeal “you have to show an error in the first judgment”.
“You are talking about hearing the case again … there must be some grounds for it,” the top judge said. “We are accepting your argument that there should be a remedy against Article 184(3). But the remedy should be given as per the constitutional requirements.”
It is necessary to clarify the grounds for the remedy, Justice Bandial further observed.
“If the court sees an injustice, it uses the scope of Article 187 of the Constitution,” he said, adding that the SC didn’t need to make an announcement regarding this.
The AGP, on the other hand, assured the court that the review judgments law was not an interference in the judiciary’s freedom. “If someone has an objection to the law, they could have approached the high court,” he added.
At that, Justice Akhtar highlighted that the law under discussion was directly related to the powers of the SC. “Is the top court not the right forum to challenge the law in?”
The AGP replied that the matter would have eventually landed in the SC. Wrapping up his arguments, Awan requested the bench to dismiss pleas against the review judgments law.
He then left the courtroom saying that he had to discuss the Supreme Court (Review of Judgments and Orders) Act 2023 with the prime minister.
Subsequently, Election Commission of Pakistan lawyer Sajeel Sheryar Swati came to the rostrum and sought 10 minutes to present his arguments. However, the judges directed him to submit a written response and directed Barrister Ali Zafar — who attended the hearing via video link — to complete his arguments.
The PTI lawyer contended that the AGP had failed to answer the most basic question in his arguments. He also pointed out that the Indian SC’s decision referred to by Awan was not relevant.
“How much more time do you need?” the CJP asked Zafar, to which the latter replied that he would only require 15 to 20 more minutes.
The lawyer then said that constituting a larger bench for a review would mean that the entire hearing would be conducted again. “The new judges in the bench will have to hear the case again.”
He added that if only the review was concerned, the original bench could correct the mistakes made in the earlier verdict.
Later, the Supreme Court of Pakistan reserved its decision on the petitions against the review of orders and judgments act and the chief justice said that the decision will be delivered soon.
The petitioner, in his plea against the Review of Judgments and Orders Act 2023, requested the court to “set aside [the Act] as unconstitutional being Ultra Vires, void ab-initio and issued without jurisdiction [and] of no legal effect.”
The petition filed by Riaz Hanif Rahi made the government a respondent through the Ministry of Law and Justice Secretary and Senate Secretariat Secretary Muhammad Qasim Samad Khan.
Citing Articles 188 and 191 of the Constitution, it contended that the law is “unconstitutional” and has been passed by the government for “its personal advantage to avoid the regime of present CJP without taking into consideration the public interest”.
Rahi further submitted that the respondents had no jurisdiction to go beyond their constitutional limits under “extraneous considerations and ulterior motives”. The law came into effect on May 5, 2023.
Referring to the Act, Law Minister Azam Nazeer Tarar alluded to Article 188 of the Constitution and said it [the law] empowers the SC subject to the provision of any Act of Majlis-e-Shoora and any rules made by the top court, to review any judgment pronounced or any order made by it. He said the latest legislation is procedural in nature.
The law minister said the bill was formulated under the spirit of Article 188 of the Constitution.