• CJP taken by surprise, agrees orders under Article 184(3) require ‘some form of substantive review’
• AGP asked to get instructions regarding ‘intrusive’ bill aimed at regulating suo motu powers

ISLAMABAD: The Sup­reme Court on Monday adjourned the hearing of a review petition filed by the Election Commission of Pakistan (ECP) against a top court ruling that dir­ected polls in Punjab on May 14 after Attorney Gen­eral Mansoor Usman Awan surprised judges by disclosing that fresh legislation, which expanded the jurisdiction of the court by giving a right to appeal under Article 184(3), had come into force.

At the outset of the hearing, the AGP appea­red at the rostrum to inf­orm the three-member bench hea­ded by Chief Justice Umar Ata Bandial about the passage of ‘The Supreme Court (Review of Judgements and Order) Act 2023’.

The bill “aimed at facilitating and strengthening the Supreme Court in exercising its powers to review its judgements and orders” was tabled in the National Assembly on April 14 and passed the same day, while the Senate approved its passage on May 5 amid protests by the opposition.

President Dr Arif Alvi assented to the law on Friday and a notification to this effect was issued on Monday. As per the law, the scope of the review will be similar to Article 185, which confers appellate jurisdiction to the top court.

In response to the disclosure, the CJP responded: “This is interesting.”

Justice Munib Akhtar quipped, “I see Mr Swati (the ECP lawyer) has a smile on his face.”

Though the CJP postponed the hearing without giving a new date, the attorney general was asked to get instructions from the government regarding the Supreme Court (Practice and Procedure) Act, which would be heard on Thursday (June 1). It may be noted that the SC had stayed the implementation of the said bill.

While referring to the Supreme Court (Practice and Procedure) Act, CJP Bandial regretted that the government had interfered with the management of the court. “Don’t do this please,” Justice Bandial said, adding that the government should adopt the right course.

Independence of the judiciary

The fundamental concern of the court is the independence of the judiciary, which is the fundamental right and the salient feature of the Constitution, according to the CJP. He, however, conceded that the court “understands that orders under Article 184(3) require some form of substantive review”. He added that the court has to proceed with the present case under the new law.

Since the PTI counsel was not present in Courtroom No.1, the CJP said the court wanted to hear the other side first to determine the case in light of the new law. Justice Bandial also asked the AGP to “explore silver lining”, saying that the prevalent temperature – conflict – would not help in stabilising the economy, nor was it in any way beneficial to the public.

Legal observers believe that though former prime minister Nawaz Sharif and Jahangir Khan Tareen have already exhausted the remedy of review petitions against their disqualification, they may still benefit from the law if the Supreme Court decides to curtail the life ban it imposed under Article 62(1)(f) of the Constitution. Both Mr Sharif and Mr Tareen were disqualified through judgements rendered in the Panama Papers case on July 28, 2017, and the Hanif Abbasi case on Dec 15, 2017, respectively. Likewise, the act may also affect the outcome of judgement on Article 63-A.

New law

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

The act asked to enlarge the jurisdiction of the Supreme 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 Supreme Court 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.

Published in Dawn, May 30th, 2023

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