ISLAMABAD: The Supreme Court was asked to suspend the Supreme Court (Review Judgment and Order) Act, 2023 and refer the matter to a larger bench, which is already hearing pleas against another Act.
A three-judge bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan and Justice Munib, on Tuesday, heard the petitions against the newly-enacted Act passed by the National Assembly and the Senate, also approved by the President of Pakistan Dr Arif Alvi.
Three constitutional petitions were filed challenging the vires of the Supreme Court (Review Judgments and Orders) Act, 2023. The petitioners’ counsels contended that the enlargement of the review jurisdiction is to the ambit of appellate jurisdiction under the provisions of Entry 55 of the Federal Legislative List.
They contended that the conferment of the appellate power in the review was tantamount to enlarging the review jurisdiction. Such enlargement is not envisaged in Article 185 of the constitution; therefore, the constitutional amendment is necessary with respect to the Review Act that purportedly has the same effect as Supreme Court (Practice and Procedure) Act, 2023, which is already under-challenged and suspended by this Court on April 13.
An eight-judge bench of the Supreme Court on April 13 declared; “The moment Supreme Court (Practice and Procedure) Bill, 2023 receives the assent of the President or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the Act that comes into being shall not have, take or be given any effect nor be acted upon in any manner.”
The lawyers argued that in the Practice and Procedure Act, the right of appeal is given indirectly, adding both laws are colourable legislation. The appeal has been provided at two levels - one against the judgment/ order of the high court under Article 185 and the second after the judgment/ order of the apex court under Article 188 of the constitution.
The chief justice remarked that they have obliterated the distinction between the appeal and review, given in the constitution and now they have created “super appeal”. He inquired from Barrister Ali Zafar, who represented Pakistan Tehreek-e-Insaf (PTI) Secretary Omar Ayub, “Don’t you think they should have pondered and made this law carefully, but it seems this law was crafted hastily.”
Zafar stated that this hasty decision was not debated in the Parliament. The Act was passed in five minutes in the joint sitting. The right of appeal against the SC order or judgment is total rehearing, adding that review jurisdiction is well defined in the constitution. Both laws are unusual
The chief justice said the parliament could have given the effect of Article 187 of the Constitution to the review jurisdiction for doing complete justice. He also referred to the example of India, wherein, review jurisdiction was widened on two grounds. The chief justice noted that through this law the legislators created jurisdiction of review equal to an appeal.
Justice Munib questioned can the Act of Parliament interfere with the Supreme Court Rules, which are subordinate to the constitution. He further asked can the legislators make laws inconsistent with the rules. The case was adjourned until today (Wednesday).
Copyright Business Recorder, 2023