A three member bench of the apex court on Friday unanimously declared the Supreme Court Review of Judgments and Orders Act 2023 as null and void. The court issued a written order of 87 pages in the case and said that the Parliament has no powers for legislation against the constitution. The bench issued a detailed decision containing 51 pages while Justice Munib Akhtar wrote an additional note containing 30 pages.
The judgment said that the power to invalidate any law should be exercised with utmost care and a law should not be declared invalid when its provisions have compatibility with the Constitution.
It stated that the said act was clearly contradicting the Constitution of Pakistan and it was not possible to declare this law as compatible with the Constitution. We have taken an oath to protect and defend the Constitution, it said, adding that the courts are empowered to establish the rule of the Constitution. The verdict said that this judicial power had to be exercised with great care to determine whether the law is according to the Constitution or not? The legislation for Supreme Court Reviews of Judgments and Orders Act is beyond the power of Parliament. The court said that there was no ambiguity in the Supreme Court decisions on the scope of revision, adding that Article 188 and the implementation of judicial decisions on it was binding on all. It said the Parliament knows that appeal and revision are two different things. It has been said in the judgment that every effort was made to see the act as compatible with the Constitution but it still finds the act as contradicting with the Constitution. The Supreme Court Review of judgments and orders Act has no legal status, the verdict said, adding that Parliament cannot introduce the legislate related to the jurisdiction of the Supreme Court. It is settled a principle that simple law cannot alter or make addition to the Constitution. The change in Supreme Court Rules is against the independence of the Judiciary.
Meanwhile, Justice Akhtar penned an additional note, wherein he observed, “A review is not an appeal. Indeed, it is quite different and distinct from it. So says conventional wisdom.”
Justice Akhtar then recalled the history of review and appellate jurisdictions, beginning with the Government of India Act 1935, which he said “became the first Constitution for both, the dominions of Pakistan and India”.
Quoting numerous judgements, he arrived at the conclusion: “Here was the wisdom that became conventional: a review is not an appeal.”
Justice Akhtar cited Article 184 of the Constitution, which he said “deals with the appellate jurisdiction of the Court from judgements, decrees, etc of the high courts”. He observed that an appeal – whether granted by right or by the Supreme Court – does not lie on a question of fact but “only on questions of law”.
He concluded, “Therefore, […] section 2 (of the law) clearly goes beyond even Article 185 when it provides for the scope of the appeal as including questions of fact.”
Opposing the empowering of the petitioner to have a counsel of choice, Justice Akhtar cited Rule 6 of Order XXVI of Supreme Court Rules 1980, which “provides that unless special leave is obtained from the Court, it is only the advocate who appeared ‘at the hearing of the case’ who will ‘be heard in support of the application for review'”.
In the note, Justice Akhtar observed that Section 2 of the law sought to “transform the nature of the jurisdiction by purporting to alter the ‘scope’ in relation to judgements or orders under Article 184”.
“But that cannot mean that the review jurisdiction […] can be so altered that it, in substance, is transformed into an appellate jurisdiction,” he stated. The justice then went on to raise questions about members of the bench hearing the review.
Noting that the review under Section 2 of the enacted law would have to be heard as though it were an appeal under Article 185 of the Constitution, he recalled that it was a “settled and cardinal rule that no judge can hear an appeal from his or her own judgment”.
Highlighting that the said section created a “dilemma”, Justice Akhtar said the only way out of it would be for none of the judges who originally heard the latter to be part of the bench hearing the review petition. However, resultantly, the author of the judgement not being able to be part of the review bench was “certainly startling”, he added.
The judge stated that the resulting bench would “at one and same time, decide it in terms of two distinct and separate jurisdictions”, which he said was a “startling conclusion”.
Noting another issue arising from Section 3 of the law, Justice Akhtar observed that the “true nature of and intent behind section 2 [was] nothing other than a right of appeal masquerading as a ‘review'”.
Again objecting to Section 3, he said that as a result, a “full court could never be constituted to hear a matter” as “any such possibility would stand practically precluded by reason of section 3”. He went on to observe that while the enacted law “purports only to regulate the review jurisdiction under Article 188, it oversteps that bound and contains and limits […] also the power” of the CJP.
Justice Akhtar in his note concluded that Sections 2 and 3 of the law “violate more than one constitutional principle and rule”, and were “ultra vires the legislative competence conferred by Article 188” of the Constitution. “However, this conclusion may, at this point, be marked as provisional,” he said.
