Supreme Court Strikes Down Law ExpandingReview of Judgements


The Supreme Court (SC) issued a ruling on Friday, declaring the Supreme Court (Review of Judgments andOrders) Act 2023 unconstitutional, thereby invalidating its attempts to broaden the scope of review petitions.

A three-judge bench, comprised of Chief Justice of Pakistan Umar Ata Bandial, along with Justices Munib Akhtar and Ijazul Ahsan, had reserved their judgment on June 19. Their decision held significant implications for the Election Commission of Pakistan’s (ECP) review of the April 4 verdict that set May 14 as the date for Punjab Assembly elections.

The Act was intended to enhance the Supreme Court's authority in reviewing its own judgments and orders. It proposed expanding the court's jurisdiction by allowing appeals under Article 184(3), which empowers the SC to intervene on matters of public importance relating to fundamental rights. This envisioned review scope would have aligned with Article 185, which grants appellate jurisdiction to the top court.

The comprehensive verdict, available on Dawn.com, decried the Act as "repugnant" to the Constitution, falling outside Parliament's legislative competence, and hence null and void. The judgment cautioned against any attempt through regular legislation to intrude upon the SC's powers and jurisdiction, including the review domain, as this would be an erroneous interpretation of the Constitution.

The judgment went on to state that the Constitution did not provide any "explicit authorization" for Parliament to expand the SC's review jurisdiction under Article 188. Furthermore, the Act did not merely "expand" the review jurisdiction; rather, it introduced an entirely new appellate jurisdiction that lacked constitutional backing, authorization, or sanction.

Additionally, the judgment highlighted that any legislation that undermines the judiciary's independence is inherently unconstitutional. It asserted that to transform the court's review jurisdiction into an appellate one, a constitutional amendment would be required since ordinary laws cannot alter or modify the Constitution.

The ruling further stated that the so-called "expansion" of the court's jurisdiction had "no constitutional basis" and was not rooted in any provisions within the Constitution related to the judiciary or the SC.

Justice Munib Akhtar appended an extra note, affirming that a review is distinct from an appeal. He traced the historical evolution of review and appellate jurisdictions, starting with the Government of India Act 1935, which served as the first constitution for both Pakistan and India.

Drawing from various legal precedents, he concluded that "conventional wisdom" held that a review is not tantamount to an appeal. Citing Article 184 of the Constitution, Justice Akhtar underscored that appeals, whether by right or through the Supreme Court, are confined to matters of law rather than fact.

Justice Akhtar opposed the empowerment of petitioners to select their advocate, referencing Rule 6 of Order XXVI of the Supreme Court Rules 1980, which allows only the advocate who initially presented the case to be heard in support of a review application.

He observed that Section 2 of the Act sought to "alter the nature of jurisdiction" by attempting to modify the "scope" of judgments or orders under Article 184. However, he argued against transforming the review jurisdiction into an appellate one, and raised concerns about the bench composition for reviews.

Justice Akhtar noted that the review, as per Section 2 of the enacted law, would have to be heard as an appeal under Article 185. This posed a dilemma as a settled rule dictates that a judge cannot hear an appeal from their own judgment.

Pointing out another issue arising from Section 3 of the law, he noted that its true intent was to introduce an appeal under the guise of a review. This, he argued, would practically preclude the formation of a full court to hear such cases.

He concluded that Sections 2 and 3 of the law violated multiple constitutional principles and rules, and exceeded the legislative competence outlined in Article 188. However, he noted that this conclusion might be provisional at this juncture.

On the subject of Nawaz Sharif's disqualification, former Law Minister Azam Nazeer Tarar contended that the SC's decision would not significantly impact the cases. He referred to an amendment to the Elections Act that limited disqualifications to five years retroactively, safeguarding Nawaz Sharif's eligibility to participate in elections.

Tarar criticized the verdict as an infringement on Parliament's independence and speculated that its timing, following the dissolution of the National Assembly, might be construed as capitalizing on Parliament's absence.

In May, the bill had been passed amid clashes between Parliament and the judiciary. The opposition perceived it as an attempt to reverse the disqualification of Nawaz Sharif. The law proposed expanding the Supreme Court's review jurisdiction, allowing appeals within 30 days in suo motu cases. This provision would have enabled disqualified individuals, like Nawaz Sharif, to appeal their disqualifications.

This verdict, arriving just after Prime Minister Shehbaz Sharif's announcement that Nawaz would return next month, doesn't drastically alter Nawaz's circumstances but underscores the intricate interplay between legal frameworks, political dynamics, and constitutional principles in Pakistan's legal sphere.

 

This judicial decision resonates beyond the immediate case, echoing the larger principles that guide the balance of powers within a democratic framework. It reflects the judiciary's role as a guardian of the constitution, ensuring that legislative actions remain within the boundaries set by the fundamental law of the land.

Justice Munib Akhtar's comprehensive examination of the history of review and appellate jurisdictions serves to clarify the inherent differences between the two legal concepts. By spotlighting the limitations and potential conflicts arising from the reviewed law's provisions, he reinforces the necessity of preserving the clarity and integrity of legal processes.

Former Law Minister Azam Nazeer Tarar's perspective on the impact of the verdict on Nawaz Sharif's disqualification cases underscores the broader implications of legislative amendments. It highlights the interconnectedness of legal reforms and their potential to influence the political landscape, showcasing the intricate relationship between legal statutes and political maneuvering.

In conclusion, the Supreme Court's ruling to strike down the 2023 Act stands as a testament to the resilience of constitutional principles in the face of legislative adjustments. It reaffirms the judiciary's role as a check against potential overreach, safeguarding the integrity of the legal system. As Pakistan navigates its political and legal terrain, this decision contributes to shaping the framework within which future legislative initiatives will be evaluated, ensuring that they align with the spirit of the constitution and uphold the rule of law.