ISLAMABAD:
The Supreme Court while announcing its verdict on Friday in the matter concerning a newly introduced law about the review of court judgments and orders declared the law ‘unconstitutional’.
A three-member bench of the apex court led by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtarhad reserved the decision on June 19.
The Supreme Court (Review of Judgements and Orders) Bill, 2023 widened the scope of review jurisdiction in cases decided under Article 184(3) of the Constitution. The piece of legislation was introduced by the coalition government and passed by the National Assembly on April 14.
The bill received the seal of approval from the Senate—the upper house of parliament—on May 5 before it was sent to President Arif Alvi who signed the act into law.
However, the law had sailed through parliament, apparently without the knowledge of the SC until Attorney General for Pakistan (AGP) Mansoor Awan had submitted the Senate Secretariat’s gazette notification to the same three-member bench during a hearing of the Election Commission of Pakistan’s (ECP) review petition against its April order with regard to the provision of elections in Punjab.
The bench had abruptly adjourned proceedings at the time and later decided to hear the petitions filed against the review law together with the poll authority’s review plea, but clarified that it would hear the petitions against the Review of Judgments Act first and the Punjab election revision case later.
During later proceedings, the bench had remained critical of the law, with the CJP highlighting certain loopholes in the Supreme Court (Review of Judgments and Orders) Act 2023.
He had noted that a “super appeal” had been created through this law.
Notably, according to the statement of the objects and reasons of the act, it was necessary to ensure fundamental rights to justice by providing for a meaningful review of judgments and orders passed by the SC in the exercise of its original jurisdiction under Article 184.
It stated that in case of judgment and orders of the SC in exercise of its original jurisdiction under Article 184 of the Constitution, the scope of review on both facts and law, shall be the same as an appeal under Article 185 of the Constitution.
Article 184(3) of the Constitution of Pakistan gives the Supreme Court the extraordinary power to assume jurisdiction over any “question of public importance with reference to the enforcement of any…fundamental right.”
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Previously, the bench which issued the original judgment heard a review petition.
However, under the new law: “A review petition shall be heard by a bench larger than the bench which passed the original judgment in order. The review petitioner shall have the right to appoint any advocate of the Supreme Court of his choice for the review petition.”
It stated that the right to file a review petition was also to be available to an aggrieved person against whom an order has been made under clause (3) of the Article 184 of the Constitution, prior to the recommendation of this legislation.
“The petition shall be filed within sixty days of the commencement of this legislative piece. The legislation shall have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force of the judgment of any court including the Supreme Court and a high court.”
The verdict
Today, the apex court struck down the law and ruled that “the Parliament cannot legislate regarding any matter relating to jurisdiction and powers of the SC”.
“At first glance, it may (if seen in isolation and read out of context) appear that parliament may be competent to legislate and pass the 2023 Act since the said entry read with Article 188 appears to subject the review jurisdiction of this court to an Act of Parliament. However, a closer look at the extent, scope and constitutional implications of the 2023 Act paints a totally different picture,” read the judgment.
“What the legislature has failed to realise is that the authority to legislate with respect to the review jurisdiction of Article 188 is circumscribed by other Articles of the Constitution and the scheme of the Constitution ensuring the independence of the judiciary. Further, the scope to frame rules under Article 191 to regulate its practice and procedure vests in the SC,” it stated.
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