ISLAMABAD: Leader of the House in Senate Ishaq Dar, along with parliamentary leaders of eight different parties, have termed the apex court ruling against the Supreme Court (Review of Judgments and Orders) Act 2023 — aimed at expanding the scope of its review jurisdiction — ‘unconstitutional’ and an ‘interference in the ambit of the parliament’.

Taking exception to the Friday decision of the top court, which reverses what the opposition calls a piece of legislation to help ex-premier Nawaz Sharif challenge his disqualification, the senators signed a declaration alleging that the decision badly affects the freedom and independence of parliament.

Through the declaration, released on Sunday, the legislators expressed their astonishment why the SC issued the verdict that had been reserved for several weeks, just a day after the dissolution of the National Assembly.

Besides Ishaq Dar and PML-N’s Azam Nazeer Tarar, PPP senator Yousuf Raza Gillani, JUI-F’s Abdul Ghafoor Haideri, Balo­chistan Awami Party’s Manzoor Ahmed Kakar, National Party’s Tahir Bizenjo, Pashtun­khwa Milli Awami Party’s Sha­fique Tareen, Awami Nati­onal Party’s Hidayatullah and Balochistan National Party (Mengal) Senator Mohammad Qasim signed the declaration.

The declaration points out that the Constitution clearly identifies the limits/powers of the state institutions. “Only parliament can do the legislation and Supreme Court’s ruling that the rules of the apex court are superior than act of parliament is unconstitutional and unfortunate. The court should avoid interfering in the ambit of the parliament.”

On the other hand, the Senate may also have a heated debate during this week over the issue, as PML-N senator Irfan Siddiqui submitted an adjournment motion, urging the upper house of parliament to discuss repercussions of the Supreme Court order that he said had ‘violated sanctity of the parliament’.

On August 11, a day after the dissolution of 15th National Assembly of Pakistan, the SC pronounced the landmark decision reserved since June 2023.

According to the motion, the move does not reflect ‘good intention’ on part of the court as it ‘curtailed powers of the parliament’. “The senate should immediately discuss the matter and take legal action against the insult,” the PML-N senator said.

“There can be no bigger insult to the parliament and democracy that three judges not only strike down a law that does not conform to their rules but bar parliament from legislation on the subject,” he added.

“The court order gives the impression that the Supreme Court rules are superior to parliament’s power to legislate,” it stated.

The senator shed light on the fact that the apex court decisions under Article 184(3) had no remedy though there was right to appeal against decision of lower courts. “This is against basic human rights and contrary to the spirit of justice,” he said.

‘Murder of justice’

The seven-point motion elaborates that the key legislation was passed by 442 members of the parliament and the objective was to ensure right to ‘fair trial’ as enshrined under Article 10-A.

Responding to the argument that the framers of the constitution did not give right to appeal under Article 184(3), the PML-N senator said they would not have imagined the time when the scope of the said provision would have no limits. “If the framers of the constitution had any idea that this indiscriminate and unfair use of discretion could one day ban a citizen from politics, they would probably have scrapped this provision or given the right to appeal,” Senator Siddiqui asserted.

He said in the adjournment motion that depriving a person of the right to appeal was akin to ‘murder of justice’.

The detailed verdict pronounced by the bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar and Justice Ijazul Ahsan stated that the Supreme Court (Review of Judgments and Orders) Act 2023 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,” stated the order that the CJP-led bench had reserved on June 19.

The bench then observed the decision had been reserved as it could determine the fate of the Election Commission of Pakistan’s review against the April 4 verdict of fixing May 14 as the date for holding Punjab Assembly election.

The bill was moved by the close confidant of PML-N supremo Nawaz Sharif, Senator Siddiqui, through supplementary agenda. The house allowed its immediate consideration with a majority vote and passed it on May 5, as the government claimed it was aimed at strengthening the Supreme Court power to review judgements and orders though the opposition saw it an attempt to reverse Mr Sharif’s disqualification.

The law had expanded the jurisdiction of the court by giving a right to appeal under Article 184(3), which grants the court 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.

Published in Dawn, August 14th, 2023