SC strikes down newly-introduced law about judges powers

Three-judge bench declares Review of Judgements and Orders Act 2023 null and void n Unanimous judgement says Parliament has no powers for legislation against the Constitution n Change in Supreme Court rules is against independence of the judiciary, says verdict.


ISLAMABAD  -  A three-judge bench of the Supreme Court of Pakistan Friday unan­imously declared the Supreme Court Review of Judgments and Or­ders Act 2023 as null and void. 

The court issued a written order of 87 pag­es in the case and said that the Parliament has no powers for legisla­tion against the consti­tution. The bench issued a detailed decision con­taining 51 pages while Justice Munib Akhtar wrote an additional note containing 30 pages. 

The judgment said that the power to inval­idate any law should be exercised with utmost care and a law should not be declared inval­id when its provisions have compatibility with the Constitution. It stat­ed that the said act was clearly contradicting the Constitution of Paki­stan and it was not pos­sible to declare this law as compatible with the Constitution. We have taken an oath to protect and defend the Constitu­tion, it said, adding that the courts are empow­ered to establish the rule of the Constitution.

The verdict said that this judicial power had to be exercised with great care to determine whether the law is ac­cording to the Constitu­tion or not? The legisla­tion for Supreme Court Reviews of Judgments and Orders Act is beyond the power of Parliament.

The court said that there was no ambigui­ty in the Supreme Court decisions on the scope of revision, adding that Article 188 and the im­plementation of judi­cial decisions on it was binding on all. It said the Parliament knows that appeal and revision are two different things.

It has been said in the judgment that ev­ery effort was made to see the act as compat­ible with the Consti­tution but it still finds the act as contradicting with the Constitution. The Supreme Court Re­view of judgments and orders Act has no legal status, the verdict said, adding that Parliament cannot introduce the legislatation related to the ju­risdiction of the Supreme Court. It is settled a principle that simple law cannot alter or make addition to the Constitution. The change in Supreme Court Rules is against the independence of the Judiciary. 

The three-member bench of the Supreme Court had reserved the decision on June 19, after hear­ing arguments from all respon­dents in length. The bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Ban­dial, and comprising Justice Ijaz ul Ahsan and Justice Munib Akhtar Friday announced the judgment, which it had reserved on June 19.

The bench in 51-page judgment unanimously declared that the parliament was not competent to legislate with respect to Article 188 in the manner it has done by way SC Review (Judgments and Orders) Act, 2023. Justice Mu­nib also wrote 30-page addition­al note. It stated that all review petitions, whether filed against judgments and orders passed un­der the original or appellate juris­diction of this Court are and shall continue to be governed by the provisions of Article 188 of the 1973 Constitution read with the SC Rules 1980.

The verdict said that the 2023 Act appears to be an overt and glaring intrusion in the indepen­dence of the judiciary, which is a grund-norm of our constitutional scheme and has been vigorously, resolutely, and robustly guarded by the framers of the 1973 Con­stitution as is evident from vari­ous provisions of the 1973 Consti­tution. “Any legislation interfering with the independence of the judi­ciary, would by its nature and from its very inception, be unconstitu­tional, null, void and of no legal ef­fect,” added the judgment

It added that if the review juris­diction, as stated in Article 188, has to be converted into an appel­late jurisdiction, it may and sub­ject to its harmony with other pro­visions of the Constitution and the well-recognized rule of final­ity only be done through a Con­stitutional amendment and not through ordinary legislation. It is a well-recognized principle that or­dinary law cannot amend, change, delete or add to the Constitution.

The judgment noted that Section 2 of the 2023 Act provides that a review petition under Article 188 will be treated as an appeal under Article 185. A review remains a re­view and cannot be changed to an appeal otherwise it does not re­main a review. Section 2 purports to change the inherent nature of review. “We also note that Section 2 conflates appellate jurisdiction of the Supreme Court with that of review jurisdiction under Arti­cle 188 and thereby renders Ar­ticle 188 to the extent of orders/judgments passed under Article 184(3) redundant by providing an appeal for all intents and purposes under the facade of review,” said the judgment. “This appears to be an attempt to remodel the Consti­tutional scheme relating to judica­ture and potentially opening the door for diminishing, undermin­ing and eroding the power and ju­risdiction of the apex court of the country”, it added.

The court said that Section 2 by providing an appeal on facts and law against the judgements and orders passed under Article 184(3), reduces rather than en­larges the jurisdiction of the Su­preme Court under Article 184(3) since such judgements and orders are now subject to a re[1]hearing and re-appraisal by a larger bench hearing the review as an appeal thereby destroying the finality of such judgments or orders.

It noted with reference to Sec­tion 3 that review petitions are not petitions seeking leave to ap­peal in terms of Article 185(3), they are dealt with Order XIII and XVII of the 1980 Rules. Once all the formalities prescribed in the Rules are met, the matter is placed before a Bench constituted by the Chief Justice of Pakistan in terms of Order XI of the 1980 Rules. The question whether the legislature can enact a law on the subject of the constitution of benches has to be answered in the negative for the reason that a five-member bench of this Court, in SMC No.4 of 2021 (PLD 2022 SC 306 @ para 33). It continued that the power to con­stitute benches has always vest­ed with the judicial branch of the State and to suggest that the leg­islature can legislate on the issue of the mode and manner of com­position and strength of bench­es to hear certain matters (in this case review petitions), would be a gross intrusion and incursion in judicial exercise of powers under the Constitution.

Therefore, it maintained that the said Section violates the express command of the 1973 Constitu­tion. We also find that Sections 2 and 3 of the 2023 Act go against the basic principle of separation of powers and offend against in­ter alia Articles 175(2), 175(3), 184(3), 185 and 188 of the 1973 Constitution by unduly intruding into and interfering with the in­dependence of the judiciary, and therefore, diminish the mandate of this Court to protect and en­force the fundamental rights of the people of Pakistan.

Justice Munib in his addition­al note stated that the Sections 2 and 3 violate more than one con­stitutional principle and rule. These provisions are ultra vires the legislative competence con­ferred by Article 188. The 2023 Act necessarily fails and it ought to be so declared.

He also said that the sections are not only transformative; they represent a deviation and distor­tion. There is no “enlargement” in the nature of an ‘enhancement’. The sections have sought to bring about a sea change, going to the very root of the review jurisdic­tion and discarding it in favour of something wholly alien to Article 188, he further wrote.

The bill was passed by Parlia­ment on May 5 amid a tussle with the judiciary. The bill, brought to the House through supplemen­tary agenda, was moved by Sen­ator Irfanul Haque Siddiqui, who is believed to be a close confidant of PML-N supremo Nawaz Sharif. The House had allowed its imme­diate consideration with a major­ity vote of 32-21.

he government had claimed that the bill was aimed to facilitate and strengthen the Supreme Court in exercise of its powers to review judgements and orders. Howev­er, the opposition saw it as an at­tempt to reverse the disqualifica­tion of PML-N supremo Nawaz.

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