ISLAMABAD: The Attorney General for Pakistan (AGP) told the Supreme Court that a review of judgment/ order passed under Article 184 (3) of the constitution should not be understood as the review in appellate jurisdiction.

A three-judge bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, on Friday, heard the petitions against the Supreme Court (Review of Judgment and Order) Act, 2023.

AGP Mansoor Usman Awan argued that under Article 199 (c) of the Constitution, the aggrieved person himself approaches the court for relief. They cannot be treated as one class, but are different from the original jurisdiction. He said in Article 199 the case is filed in the high court. Its decision is challenged in Intra-Court Appeal (ICA), and the ICA order/ judgment is appealed in the Supreme Court under Article 185.

He contended on the other hand a person directly approaching the Supreme Court under Article 184(3), and the court exercising original jurisdiction pass an order/ judgment. The review of order/ judgment in 184(3) is different from the order/judgment made under Article 185.

The AGP maintained that the court has to create balance, whether its finality jurisdiction in Article 188 is not bound by the shatters, “as better observed by my lord (Justice Munib) in a judgment ‘shackle of the past.” The court has to respond to the changing time as it has to enforce Fundamental Rights. Whether the apex court takes the expansive or narrow, the ball is ultimately in its court, he added.

The attorney general then cited the judgment of the Supreme Court of India, saying that a 9-member bench of the Indian Supreme Court in 2020 recognised its earlier judgment for expanding the review jurisdiction. He said there (India) had been progression in their approach for complete justice. Narrow grounds are not applied in review to the judgment rendered by the Indian august court in original jurisdiction.

Justice Munib said the judgment (Indian SC) does not propose any test. The SC India treated the distinction between the review and the appeal, as review remains the review and does not become an appeal, but the government in the Act wanted that the Court treat a review as an appeal.

The attorney general contended that Order XXVI of the Supreme Court Rules, 1980, does not cater the review to the order passed in constitutional petition, adding it deals with civil and criminal proceedings.

Justice Munib asked the AGP whether he wanted the Supreme Court to obliterate the distinction between appeal and review. The chief justice said: “We have the test affirmed by the Indian Supreme Court as complete justice. He said it is open to you (AGP) to add or formulate the grounds for review in the constitution. If you can’t formulate grounds then it is antithetical as both (in 185 & 184(3) are adjudicatory, but the scope is different. The Act says to treat both in the same manner. “We would welcome remedy in Article 184(3), but it should be done carefully.”

The attorney general responded how the review of judgment rendered under Article 184(3) is understood as re-hearing. The limitation of re-hearing by the “Court of last resort” does not apply when it acts as the “Court of first instance”. He said the Court has to do complete justice as per Article 187 of the constitution while deciding the cases. The case was adjourned until Monday (June 19).

Copyright Business Recorder, 2023