ISLAMABAD: The apex court declared that the SC (Review of Judgements and Orders) Act, 2023 is repugnant to and ultra vires the Constitution, being beyond the legislative competence of the Parliament. It; therefore, struck it down as null and void and of no legal effect.
A three-judge bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, Friday, announced the judgment, which it had reserved on June 19.
The bench in a 51-page judgment, unanimously, declared that the parliament was not competent to legislate with respect to Article 188 in the manner it has done by way SC Review (Judgments and Orders) Act, 2023. Justice Munib also wrote a 30-page additional note.
It stated that all review petitions, whether filed against judgments and orders passed under the original or appellate jurisdiction of this Court are and shall continue to be governed by the provisions of Article 188 of the 1973 Constitution read with the SC Rules 1980.
The 2023 Act appears to be an overt and glaring intrusion in the independence of the judiciary, which is a grundnorm of our constitutional scheme and has been vigorously, resolutely, and robustly guarded by the framers of the 1973 Constitution as is evident from various provisions of the 1973 Constitution. “Any legislation interfering with the independence of the judiciary, would by its nature and from its very inception, be unconstitutional, null, void and of no legal effect,” added the judgment.
If the review jurisdiction, as stated in Article 188, has to be converted into an appellate jurisdiction, it may and subject to its harmony with other provisions of the Constitution and the well-recognised rule of finality only be done through a Constitutional amendment and not through ordinary legislation. It is a well-recognised principle that ordinary law cannot amend, change, delete or add to the Constitution.
The judgment noted that Section 2 of the 2023 Act provides that a review petition under Article 188 will be treated as an appeal under Article 185. A review remains a review and cannot be changed to an appeal; otherwise, it does not remain a review. Section 2 purports to change the inherent nature of the review.
“We also note that Section 2 conflates appellate jurisdiction of the Supreme Court with that of review jurisdiction under Article 188 and thereby renders Article 188 to the extent of orders/ judgments passed under Article 184(3) redundant by providing an appeal for all intents and purposes under the facade of review,” said the judgment. “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 added.
The court said that Section 2 by providing an appeal on facts and law against the judgements and orders passed under Article 184(3), reduces rather than enlarges the jurisdiction of the Supreme Court under Article 184(3) since such judgements and orders are now subject to a rehearing and re-appraisal by a larger bench hearing the review as an appeal thereby destroying the finality of such judgments or orders.
It noted with reference to Section 3 that review petitions are not petitions seeking leave to appeal in terms of Article 185(3), they are dealt with Order XIII and XVII of the 1980 Rules. Once all the formalities prescribed in the Rules are met, the matter is placed before a Bench constituted by the Chief Justice of Pakistan in terms of Order XI of the 1980 Rules. The question whether the legislature can enact a law on the subject of the constitution of benches has to be answered in the negative for the reason that a five-member bench of this Court, in SMC No.4 of 2021 (PLD 2022 SC 306 @ para 33).
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 the judicial exercise of powers under the Constitution.
Therefore, the said Section violates the express command of the 1973 Constitution. We also find 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.
Justice Munib, in his additional note, stated that Sections 2 and 3 violate more than one constitutional principle and rule. These provisions are ultra vires the legislative competence conferred by Article 188. The 2023 Act necessarily fails and it ought to be so declared.
The sections are not only transformative; they represent a deviation and distortion. There is no “enlargement” in the nature of an “enhancement”. The sections have sought to bring about a sea change, going to the very root of the review jurisdiction and discarding it in favour of something wholly alien to Article 188, he further wrote.
Copyright Business Recorder, 2023
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