• Apex court abolishes judgements’ review law, says parliament went beyond its ‘legislative competence’
• Govt functionary says verdict ‘goes beyond what was challenged’
• Fate of SC (Practice & Procedure) law, ECP review hangs in the balance

ISLAMABAD: In an anxiously awaited decision, the country’s highest court on Friday struck down the Supreme Court (Review of Judgements and Orders) Act 2023, declaring that parliament had gone beyond its legislative competence through its enactment.

“This [law] appears to be an attempt to remodel the Constitutional scheme relating to judicature and potentially opening the door for diminishing, undermining and eroding the power and jurisdiction of the apex court,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial in the judgement.

The 2023 act was challenged on the grounds that it attempts to amalgamate two inherently different jurisdictions and creates right of appeal against judgements passed in exercise of powers under Article 184(3) of the Constitution and envisages that the Supreme Court may sit in appeal over its own judgements.

Referring to arguments that rights under Article 10A (fair trial) stand breached if no meaningful review was granted to orders under Article 184(3), the CJP observed that when the framers of the Constitution had not provided any appeal or any “expanded” review against judgements or orders, such remedy cannot be inserted in the Constitution through “ordinary” legislation.

What the legislature had failed to realise while enacting the 2023 act, the CJP regretted, was that the authority to legislate with respect to the review jurisdiction of Article 188 was circumscribed by other articles as well as the scheme of the Constitution ensuring independence of judiciary.

The scope to frame rules under Article 191 to regulate its practice and procedure vests in the Supreme Court, the order emphasised, adding that the court was cognisant of the need to structure this jurisdiction and had already embarked upon and completed that exercise as far back as 1980 when it framed the Supreme Court Rules 1980. These rules and Article 188 became the subject of judicial precedent through a plethora of judgements whereby the apex court had clearly enunciated a constitutional point of law with respect to Article 188, the CJP observed.

Any legislation while placing reliance on Entry No 55 of the Federal Legislative List of the Constitution and under the garb of “enlargement of jurisdiction of the Supreme Court”, was indisputably an intrusion in the independence of the judiciary, specifically where a right of appeal was sought to be provided when none exists in the Constitution.

Since this court derives its review jurisdiction from Article 188, the parliament cannot — by way of ordinary legislation — render the 1980 Rules framed, reiterated, followed, acted upon and sanctioned in judicial pronouncements of this court null and void through ordinary legislation, the CJP observed.

These rules have been framed in exercise of an independent constitutional power and cannot be changed, modified, or overridden by ordinary legislation.

Further, the CJP said, there is no “express authorisation” anywhere in the Constitution empowering the parliament to “enlarge” the review jurisdiction of the Supreme Court under Article 188. Thus the 2023 act does not “enlarge” review jurisdiction, it “creates” a new appellate jurisdiction which has no constitutional basis, sanction or authorisation. Therefore, any attempt to interfere in the scope of court’s powers and jurisdiction, including the review jurisdiction, would constitute a wrong and erroneous reading and interpretation of the Constitution.

Under the 1980 rules, it is the sole prerogative of CJP to constitute benches, fix the number of judges; therefore, it would veer towards irrationality to hold that while the original exercise and invocation of jurisdiction under Article 184(3) is the sole prerogative of CJP, the legislature has the authority to supersede CJP and enact a law taking away this prerogative, the CJP observed.

“This may not be true, but by holding it so the court, through its judgement, has travelled beyond what had been challenged before it,” suggested a senior functionary of the outgoing government on condition of anonymity.

Additional judgement

Justice Munib Akhtar, in his additional judgement, observed that if the law was accepted, then it would mean that those members of the review bench who earlier heard the matter would exercise the review jurisdiction properly since they would be precluded from hearing it in any manner as an appeal. On the other hand, those members who had not earlier heard the matter would have to hear it as an appeal.

Thus the same bench hearing the same matter would, at one and the same time, decide it in terms of two distinct and separate jurisdictions, with some members applying the one and the rest the other.

Any such putative bench would be a strange “hybrid” that would be neither fish nor fowl, Justice Akhtar feared, adding yet there was another consequence since the “review” under the law would have to be heard by a larger bench, as the full court could never be constituted to hear a matter under Article 184.

Full courts are constituted from time to time to hear matters of great constitutional importance and more often than not in exercise of jurisdiction under Article 184. Any such possibility would stand practically precluded, Justice Akhtar said.

SC powers under watch

Dissecting the judgement, legal observers say the verdict tends to give an impression as if the SC’s rule-making powers stand at the highest pedestal.

He brushed aside the widely speculated impression that the judgement will have a negative impact on former prime minister Nawaz Sharif since he will lose any chance to wipe out his lifelong ineligibility to contest elections.

The verdict has zero relevance with the verdict, he claimed, reminding that the PML-N supremo had already availed the opportunity of review in the Panama Papers case judgement in which he was disqualified under Article 62(1)(f) of the Constitution. Besides, he added, the second review was not possible.

Moreover, Nawaz Sharif’s disqualification has already been reduced to five years after the passage of an amendment in the Elections Act 2017 — a law which limits the disqualification period to five years under Article 62(1)(f). That period too stands completed, he pointed out.

On the other hand, former Additional Attorney General Tariq Khokhar explained that the Constitution stipulates the apex court as one of the three independent and coequal branches of the government. It is the final arbiter of law and it has the authority to invalidate legislation, he said.

There cannot be any carp or cavil against the legitimate interpretive role of the court. The impugned act is an unconstitutional attempt against the independence of the Supreme Court which is not permissible under the Constitution, nor democracy, nor the rule of law and principles, Mr Khokhar said.

A rump parliament, without a parliamentary opposition and with diminished constitutional, democratic, moral and public legitimacy, acting under the diktat of extra-constitutionalists, was not the parliament as contemplated by the Constitution, he added.

As befits the guardians of the Constitution, the SC judges have determined judicially, constitutionally and independently with moral and intellectual courage and integrity, he emphasised.

Fate of another law hangs in the balance

After the strongly-worded 51-page verdict, it is expected that a hearing on an Election Commission of Pakistan (ECP) review petition may be resumed soon. The ECP had challenged the April 4 SC verdict, fixing May 14 as the date for holding the Punjab Assembly elections.

And instead of a larger bench, as suggested in the law, the same three-judge bench consisting of CJP Bandial, Justice Ijaz-ul-Ahsan and Justice Munib Akhtar, which had decided the present challenges to the act, would take up the ECP’s review petition.

While closing the hearing on challenges to the 2023 act on June 19, the CJP had observed that the decision on the case would determine the fate of ECP’s review petition.

By declaring this law as repugnant and ultra vires to the Constitution, the fate of another set of challenges to the Supreme Court (Practice & Procedure) Act, 2023 — which was enacted to clip the CJP’s powers of constituting benches and fixing cases — may not be different, as an eight-judge bench headed by the CJP has already suspended the operation of the amendment.

Published in Dawn, August 12th, 2023