Farooq Naeem—AFP
The Supreme Court on Friday struck down the Supreme Court (Review of Judgments and Orders) Act 2023, terming it unconstitutional.
A three-member SC bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial and Justices Munib Akhtar and Ijazul Ahsan had reserved its verdict in the case on June 19, and chose to announce it a day after the National Assembly was dissolved, leaving limited options to challenge it. In its last hearing in June, the bench had remarked that the ruling in the case would determine whether the Election Commission of Pakistan (ECP)’s review against a verdict fixing a date for elections in Punjab could be heard.
According to the bill passed by Parliament in May, it was aimed at facilitating and strengthening the Supreme Court in exercise of its powers to review judgements and orders. It had sought an expansion to the jurisdiction of the apex court to review judgements and ensure the fundamental right to justice by providing for meaningful review of judgments and orders passed by the apex court in the exercise of its original jurisdiction under Article 184(3).
The legislation had stated the scope of the review would be the same as an appeal under Article 185 of the Constitution, adding any review filed would be heard by a bench larger than the one that had passed the original judgement. It had also allowed petitioners to change their lawyers for the review and granted all petitioners the right to file, within 60 days of the commencement of the law, a review if they had been ruled against under Article 184(3).
In its detailed 87-page verdict, the Supreme Court noted that Article 142(a) grants Parliament the “exclusive power to make laws with respect to any matter in the Federal Legislative List.” It notes, however, that Entry 55 of the Fourth Schedule had made it clear that Parliament cannot “legislate regarding any matter relating to jurisdiction and powers of the Supreme Court.” However, it adds, it allows for Parliament to legislate on the enlargement of the jurisdiction of the Supreme Court and the conferring thereon of supplemental powers as is expressly authorized by or under the Constitution.
“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,” it states, adding that a “closer look” paints a different picture. “What the legislature has failed to realize 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 independence of judiciary,” it states. It also rules that the scope to frame rules under Article 191 to regulate its practice and procedure vests in the Supreme Court.
Any legislation relying on Entry 55 under the garb of “enlargement of jurisdiction of the Supreme Court,” is indisputably an intrusion in the independence of the judiciary, specifically so where a right of appeal is sought to be provided when none exists in the Constitution, it states, adding there is no “express authorization” anywhere in the Constitution empowering the Parliament to “enlarge” the review jurisdiction of the Supreme Court under Article 188 of the Constitution.
It also states that the 2023 Act does not “enlarge” review jurisdiction, but “creates” a new appellate jurisdiction with no constitutional basis, sanction or authorization. “Therefore, any attempt by way of ordinary legislation to interfere in the scope of its powers and jurisdiction including but not limited to its review jurisdiction would constitute a wrong and erroneous reading and interpretation of the Constitution,” it states, stressing the power to interpret the Constitution vests exclusively with the Supreme Court. “The 2023 Act appears to be an overt and glaring intrusion in the independence of the judiciary,” it adds, stating this could only be done through a constitutional amendment.
“A review remains a review and cannot be changed to an appeal otherwise it does not remain a review,” it states. “There can be no two views in concluding that in case of a conflict between a Constitutional provision and the law, the Constitution prevails and the law is liable to be struck down,” it adds, maintaining that if constitutional provisions could be changed to modified by ordinary law then that “would mean that even the fundamental rights could be denied and other Articles of the Constitution could be amended through ordinary legislation.”
The three-member bench, therefore, found that, “in the instant matter, Parliament was not competent to legislate with respect to Article 188 in the manner that it has done by way of the 2023 Act.” It further rules that Section 2 of the act had conflated the appellate jurisdiction of the Supreme Court with that of review jurisdiction under Article 188 and thereby rendered Article 188 to the extent of orders passed under Article 184(3) redundant by providing an appeal for all intents and purposes under the facade of review.
“This 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 of the country,” it states. “If there was any doubt in anybody’s mind (there is none in ours) that the real purpose of the 2023 Act is to provide for an appeal against judgements and orders passed by this Court in exercise of its power under Article 184(3) of the 1973 Constitution (where the Constitution does not provide for an appeal), Section 3 of the 2023 Act should be enough to unravel the thin veil of trying to ‘facilitate and strengthen the power [of review]’ and ‘enlarge jurisdiction of the Supreme Court’.”
Section 3 of the act, it states, calls for a larger bench to hear reviews, which would include judges who had not heard the matter earlier, necessitating rehearing of the entire case on both facts and law. “There is no provision in the Constitution providing for the Supreme Court to sit in appeal over its own judgements passed in exercise of powers under Article 184(3) of the 1973 Constitution,” it added.
“To allow a party to substitute its counsel in the review proceedings and to raise new points of facts and law would be tantamount to allowing litigants to get another shot at overturning a judgement of this Court not to mention offend the principles laid down by this Court relating to finality attached to the judgements of this Court,” it states, questioning how this could be regarded as separate from an appeal.
In a seeming hint of how the court could also rule on the pending Supreme Court Practice and Procedure Act, 2023, seeking to curtail the chief justice’s powers of bench formation, it stated that the apex court had already declared that under the 1980 Rules, it is the sole prerogative of the Chief Justice of Pakistan to constitute benches, to fix the number of judges who constitute the said benches. As such, it states, the legislature lacks the authority to supersede the Chief Justice and enact a law taking away the prerogative of the Chief Justice of nominating and fixing the number Judges to hear a review petition. “The power to constitute benches has always vested with the judicial branch of the state and to suggest that the legislature can legislate on the issue of the mode and manner of composition and strength of benches to hear certain matters (in this case review petitions), would be a gross intrusion and incursion in judicial exercise of powers under the Constitution.”
Further, the ruling states that Sections 2 and 3 of the 2023 Act “go against the basic principle of separation of powers and offend against inter alia Articles 175(2), 175(3), 184(3), 185 and 188 of the 1973 Constitution by unduly intruding into and interfering with the independence of the judiciary, and therefore, diminish the mandate of this Court to protect and enforce the fundamental rights of the people of Pakistan.”
On Section 5, which aimed to allow people aggrieved by any judgement rendered under Article 184(3) to file a review petition on both facts and law, the court has ruled this risks opening a “floodgate of litigation and to allow filing of review petitions irrespective of the date when the order complained against had been passed.” It further states that the Constitution envisages that all judgements of this Court “are meant to be obeyed and respected by the parties before it, and to the extent they decide questions of law or are based upon or enunciate a principle of law, be binding on all other Courts of Pakistan (under Article 189).” This principle of finality would be ruptured by Section 5, it states.
“We are mindful of the fact that although the constitutional courts have a duty to protect and defend the Constitution and have been conferred with the power to rule on the vires of laws on the touchstone of the Constitution, the power of striking down laws, has to be exercised with a great deal of care and caution,” it states, adding that the three-member bench has concluded that the 2023 Act is so “patently, manifestly and irretrievably in conflict with and violative of various Articles of the 1973 Constitution that it is not possible to harmonize the two in any manner whatsoever.”