ISLAMABAD: The Supreme Court on Monday reserved its ruling on a set of challenges to the Supreme Court (Review of Judgments and Orders) Act 2023 with an observation that decision on the case will determine the fate of the Election Commission of Pakistan’s (ECP) review against April 4 verdict of fixing May 14 as the date for holding Punjab Assembly elections.

“Let’s see what happens,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial while closing the proceedings in the case with a direction to all the parties to furnish written synopsis within two days to help understand their point of view if something during the hearing was missed out.

The CJP also observed that the court welcomes and accepts that there should be remedy to the orders and judgements issued under Article 184(3) but such remedy should be crafted in accordance with the constitution by adding valid grounds rather than ordinary legislation. Why the government should not consider giving definition of the public importance — an important ingredient — while invoking petitions under Article 184(3), he wondered.

Wrapping up his argument, Atto­rney General for Pakistan (AGP) Mansoor Usman Awan urged the court to show favourable latitude while deciding the constitutionality of the law by reading it down (presumption of valid meaning).

For the purpose of Article 25 that ensures equality of citizens, review petitions against judgments under Article 184(3) should not be treated as if falling to be in the same class as review petitions under Article 185 due to availability of different forums.

Referring to Section 3 of the law that requires hearing of the review petition by a larger bench, the AGP emphasised that the original judges who earlier decided the case would also be part of the larger bench in addition to more judges.

To substantiate this, he referred to 2016 houbara bustard case in which five-judge bench was constituted to hear the judgment by a three-judge bench.

The AGP also referred to 2015 Imrana Tiwana case to emphasise that a statute cannot be declared unconstitutional where more than one interpretation was possible unless it violates the constitution in letter. Besides no malafidy could be attributed to the legislators for enacting a law, AGP argued, adding the law did not offend Article 10A. Also, the law did not trample upon the independence of the judiciary or encroached upon the power of the apex court, he added.

Later Barrister Syed Ali Zafar, on behalf of PTI Secretary General Omar Ayub Khan, argued that Article 187, which empowers the SC to do complete justice, could not be used to create a jurisdiction. Besides, he added, creation of a larger bench to hear review petitions against judgments under Article 184 would mean re-hearing the entire case that in ordinary course was not allowed while hearing review petitions. Thus, the Supreme Court will become more of an appellate court while hearing review petitions against judgments under Article 184(3), he argued.

Published in Dawn, June 20th, 2023

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