ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Friday observed that laws like the Supreme Court (Review of Judgements and Orders) Act, 2023, which expands the scope of a review petition, should have been enacted after taking advice from people like the attorney general for Pakistan (AGP), who have experience with litigation.

He said the apex court would welcome any remedy provided in respect of its orders or judgements given under Article 184(3), which allows the Supreme Court to assume jurisdiction in matters of public importance, but added that “we expect that such laws should be formulated carefully”.

The CJP has been heading a three-member bench that has taken up a set of challenges to the PDM government’s Supreme Court (Review of Judgements and Orders) Act of 2023, along with a review petition filed by the Election Commission of Pakistan (ECP) against the court’s April 4 verdict fixing May 14 as the date for holding elections to the dissolved Punjab Assembly.

“The real point to understand,” the CJP highlighted, “is whether the concept of review can be merged with that of appeal.”

As court of last resort, SC should not limit re-hearing of cases under Article 184(3), AGP argues

“New grounds can be added while filing a review petition against a judgement or orders of the Supreme Court issued in exercise of Article 184(3) of the Constitution, but the re-hearing of a case from the start [as in the case of an appeal] would be against fundamental principles; rather, antithetical [to them],” the CJP emphasised.

AGP Mansoor Usman Awan, who has been defending the new law, argued that the court of last resort should not apply any limitation on the re-hearing of a case initiated under Article 184(3). “This is necessary,” he said, “because the apex court [in suo motu proceedings] becomes the court of first instance and facilities like the intra-court appeal, available against high court judgments under Article 199, and subsequent appeals before the apex court, available under Article 185, are not provided to the litigant.”

“[Currently] under Article 184(3), the Supreme Court is the court of first instance as well as the court of last resort, since there is no appeal available against the orders of the court,” the AGP emphasised.

The AGP was of the view that the imperative of doing ‘complete justice’ should be considered while considering the scope of a review petition, adding that review petitions against judgments issued in the exercise of Article 184(3) should not be treated in a manner similar to petitions dealing with Article 185. Therefore, Order 26 of the Supreme Court Rules, which deals with the filing of reviews, should not be applied with a narrow scope in this regard.

The AGP said the concepts of review and appeals were a bit intertwined, to which Justice Ijaz-ul-Ahsan objected, saying that the AGP should not use the word ‘intertwine’ since that would be contradictory. “At best, between the Supreme Court (Review of Orders and Judgments) Act, 2023 and the Supreme Court (Practice and Procedure) Act, 2023, the AGP is dealing with a case of ‘overlapping’,” Justice Ahsan observed, noting that both provide for a review to be conducted by larger benches than the ones that originally heard the case.

The AGP argued that the nature of relief given under Article 184(3) as well as Article 185 were distinguishable and cannot be treated as one class, since appeals decided under Article 185 are aimed at putting an end to the litigation process, which is the reason why the principle of review had been narrowed down.

“But the new law leaves the apex court open in a way that it should not remain bound by the shackles of the past,” the AGP said, adding that, to advance the enforcement of the fundamental rights of citizens, the apex court always has a role.

The case will be taken up again next week on Monday.

Published in Dawn, June 17th, 2023