Apex Court strikes down the Supreme Court (Review of Judgments and Orders) Act 2023, terms it unconstitutional

ISLAMABAD, August 11 (SABAH): The Supreme Court of Pakistan 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) Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar— 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 judgments 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 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 judgment 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.

Addressing the questions surrounding the maintainability of the petitions, the order stated: “Article 184 of the 1973 Constitution confers original jurisdiction on the Supreme Court.”

It further pointed out that “since the independence of the judiciary is a recognized salient feature of the 1973 Constitution and provisions of the 2023 Act prima facie appear to affect such independence, the instant Petitions raise questions of public importance within the contemplation of Article 184(3) of the Constitution.”

“Further, any intrusion by any organ of the State in the independence of judiciary affects every citizen of the country and is therefore a question of great public importance,” it added.

Moreover, the order said that the argument raised to the effect that the petitioners ought to have approached the high court under Article 199, was “misconceived”.

“This court has the unique constitutional mandate under Article 184(3) to directly entertain matters related to enforcement of fundamental rights which raise questions of public importance,” the order said.

The order added that questions of public importance concerning the enforcement of fundamental rights can directly be raised by the Supreme Court.

Adding that the protection of fundamental rights was a duty of the judiciary, the order stated: “The 2023 Act is an intrusion in the basic and fundamental feature of the Constitution namely the independence of the judiciary directly and undisputedly affects fundamental rights of citizens.”

The order also brushed aside the AGP’s argument that no appeal or review is available against a judgment or order passed by this Court under Article 184(3), and the 2023 Act addressed such “mischief”.

Terming this argument “flawed”, the order stated that considering the process followed by the court in passing such orders, “nothing was farther than the truth.”

The order further stated: “Parliament cannot legislate regarding any matter relating to jurisdiction and powers of the Supreme Court.”

Moreover, the bench in its order contended that “any legislation … under the garb of “enlargement of [the] jurisdiction of the Supreme Court”, is indisputably an intrusion in the independence of the judiciary.”

Any attempt by way of ordinary legislation to interfere in the scope of the court’s powers and jurisdiction, including its review jurisdiction, would constitute a wrong and erroneous reading and interpretation of the Constitution, the order states.

“There can be no two opinions that the power to interpret the Constitution vests exclusively with the Supreme Court of Pakistan.”

Comprising 7 Articles, the law — passed during the coalition government’s tenure — aims to facilitate and strengthen the Supreme Court in exercising its powers to review its judgments and orders.

Under Article 2, the jurisdiction of the Supreme Court had been extended to review cases of public interest. As per this Article, the scope of review on both facts and law, was the same as an appeal under Article 185 of the Constitution.

Article 3 mandated that a review petition be heard by a bench larger than the bench which passed the original judgment or order.

Meanwhile, Justice Munib Akhtar penned an additional note, wherein he observed, “A review is not an appeal. Indeed, it is quite different and distinct from it. 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 judgments, he arrived at the conclusion: “Here was the wisdom that became conventional: a review is not an appeal.”

Justice Akhtar cited Article 184 of the Constitution, which he said “deals with the appellate jurisdiction of the Court from judgments, 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, “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 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’”.

In the note, Justice Akhtar observed that Section 2 of the law sought to “transform the nature of the jurisdiction by purporting to alter the ‘scope’ in relation to judgments or orders under Article 184”.

“But that cannot mean that the review jurisdiction […] can be so altered that it, in substance, is transformed into an appellate jurisdiction,” he stated. The 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 were 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 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 judgment not being able to be part of the review bench was “certainly startling”, he added.

The 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.

Justice Akhtar in his note concluded that Sections 2 and 3 of the law “violate more than one constitutional principle and rule”, and were “ultra vires the legislative competence conferred by Article 188” of the Constitution. “However, this conclusion may, at this point, be marked as provisional,” he said.

Meanwhile, former law minister Senator Chaudhry Azam Nazeer Tarar Advocate said that the apex court’s verdict would have “no impact” on the cases pertaining to the disqualification of former premier Mian Muhammad Nawaz Sharif.

Speaking to a private TV channel 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.

He 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.

He 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”.

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 judgments 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 judgment 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 Judgments and Orders) Act 2023, the law is aimed at facilitating and strengthening the SC in the exercise of its powers to review its judgments.

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 judgment 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 judgment of any court, including the Supreme Court and the high court.