SC reserves verdict on pleas challenging review of judgments law

The Supreme Court (SC) on Monday reserved its verdict on a set of pleas challenging the recently-enacted Supreme Court (Review of Judgments and Orders) Act 2023, which expands the scope of a review petition.

A three-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar and Justice Ijazul Ahsan heard a set of appeals challenging the law and the Election Commission of Pakistan’s (ECP) review against the verdict fixing May 14 as the date for holding Punjab Assembly elections.

At the previous hearing, the CJP had observed that laws like the Supreme Court (Review of Judgements and Orders) Act, 2023 should have been enacted after taking advice from people like the attorney general for Pakistan (AGP), who have experience with litigation.

He had said the apex court would welcome any remedy provided in respect of its orders or judgements given under Article 184(3), which allows the Supreme Court to assume jurisdiction in matters of public importance, but added that “we expect that such laws should be formulated carefully”.

During today’s hearing, AGP Mansoor Usman Awan and PTI lawyer Ali Zafar concluded their arguments in the case after which the apex court reserved its verdict.

“We will announce the verdict after discussing it among ourselves,” Justice Bandial said. “Let’s see what happens.”

The hearing

At the outset of today’s hearing, the AGP resumed his arguments and contended that Article 188 of the Constitution — which states that the SC has the power to review any judgment pronounced or any order made by it — did not limit the scope of a review.

“Extending the scope of review in cases pertaining to Article 184(3) is not discriminatory,” he stated, highlighting that appeals were filed in the SC against decisions taken by high courts or tribunals.

“But a case linked to Article 184(3) comes directly to the apex court,” Awan said.

Meanwhile, the CJP said that the SC had not opposed expanding the scope of the review. “The question is on the manner in which the scope of review was expanding,” he said.

Justice Bandial also pointed out that the Indian supreme court did not give the right of appeal in such cases. “We don’t understand the reason for expanding the scope of review.”

For his part, the AGP said that the top court had the power of review under Article 188 of the Constitution and there was “no limit” as per the law. “But cases and appeals under Article 184(3) cannot be treated in the same way,” he argued.

At that, the top judge remarked that lawmakers had the power to legislate but at the same time asked how review and appeal can be viewed as the same.

“The court has to keep facts in consideration,” Justice Bandial said. “If the power of review is extended, will it not be discriminatory?”

The AGP replied that there were several decisions of the Supreme Court regarding the legislative power of Parliament. “A separate jurisdiction has been kept for review in cases pertaining to Article 184(3).”

Awan further stated that the impression that some people were being exploited by granting the right of review was incorrect. He also said that the facts of the case would not be altered by expanding the scope of review.

“In review [cases], the aggrieved party must be allowed to raise every legal point. Even those legal points that were not raised earlier can’t change the facts of a case,” the AGP stated, adding that even the Indian SC had accepted raising new points in the review.

At one point during the hearing, Justice Akhtar asked if the AGP wanted the court to omit the word “appeal” from the law.

“I have not reached that point yet,” the attorney general replied, conceding that the wording of the review of judgments law was not the best and there were some “issues” with its language.

Continuing his arguments, the AGP said that if the scope of Article 184(3) had been expanded, the same should have been done with the scope of review.

“Earlier, the judges who had issued the verdict could also become a part of the larger bench hearing the review,” he recalled, adding that power to constitute benches still lay with the SC.

“So, if a judgment has been given by a three-member bench, can a four-judge panel hear the review petition?” Justice Akhtar asked.

To that, the AGP said: “Larger means larger, no matter how many judges.”

Subsequently, the CJP said that the court was discussing constitutional jurisdiction. He added that in an appeal “you have to show an error in the first judgment”.

“You are talking about hearing the case again … there must be some grounds for it,” the top judge said. “We are accepting your argument that there should be a remedy against Article 184(3). But the remedy should be given as per constitutional requirements.”

“It is necessary to clarify the grounds for the remedy,” Justice Bandial further observed.

“If the court sees an injustice, it uses the scope of Article 187 of the Constitution,” he said, adding that the SC didn’t need to make an announcement regarding this.

The AGP, on the other hand, assured the court that the review judgments law was not an interference in the judiciary’s freedom. “If someone has an objection to the law, they could have approached the high court,” he added.

At that, Justice Akhtar highlighted that the law under discussion was directly related to the powers of the SC. “Is the top court not the right forum to challenge the law in?”

The AGP replied that the matter would have eventually landed in the SC. Wrapping up his arguments, Awan requested the bench to dismiss pleas against the review of judgments law.

He then left the courtroom saying that he had to discuss the Supreme Court (Review of Judgments and Orders) Act 2023 with the prime minister.

Subsequently, ECP lawyer Sajeel Swati came to the rostrum and sought 10 minutes to present his arguments. However, the judges directed him to submit a written response and directed Barrister Ali Zafar — who attended the hearing via video link — to complete his arguments.

The PTI lawyer contended that the AGP had failed to answer the most basic question in his arguments. He also pointed out that the Indian SC’s decision referred to by Awan was not relevant.

The lawyer then said that constituting a larger bench for a review would mean that the entire hearing would be conducted again. “The new judges in the bench will have to hear the case again.”

He added that if only the review was concerned, the original bench could correct the mistakes made in the earlier verdict.

Subsequently, the court reserved the verdict on the pleas against the review judgments law with the CJP saying that a decision would be taken after discussion.

Review of judgments law

Called the Supreme Court (Review of Judgements and Orders) Act 2023, the new law is aimed at facilitating and strengthening the SC in the exercise of its powers to review its judgements.

The act asked to enlarge the jurisdiction of the apex court as expressly provided under Article 188 of the Constitution, which empowers the apex court to review any judgement and to ensure the fundamental right to justice by providing for meaningful review of judgments and orders passed by the SC in the exercise of its original jurisdiction under Article 184(3).

Under Section 2 of the act, the scope of the review, on both facts and law, will be the same as an appeal under Article 185 of the constitution. Section 3 says that a review petition will be heard by a bench larger than the bench which passed the original judgement or the order. Likewise, Section 4 empowers the petitioner filing review to appoint any advocate of the Supreme Court of their choice for the review petition.

Section 5 says that the right to file a review petition will also be available to an aggrieved person against whom an order has been made under Article 184(3) of the Constitution prior to the commencement of this act. However, the review petition, under this section will be filed within 60 days of the commencement of the act.

Section 6 says the review petition will be filed within 60 days of the passing of the original order, adding the provisions of the act will have overriding effect notwithstanding anything contained in other laws, rules or regulations for the time being in force or judgement of any court, including the Supreme Court and the high court.