News Analysis: Legislation to help govt appeal SC move to nix CJP powers bill

KARACHI: The Supreme Court Review of Judgments and Orders Bill, 2023 passed by the National Assembly on Friday could help the government appeal the SC’s decision to set aside the Supreme Court Practice and Procedure Bill 2023, according to legal experts.

Explaining the Supreme Court Review of Judgments and Orders Bill 2023, Barrister Ali Tahir says: “Article 188 of the constitution provides the Supreme Court the power to review any judgment or order pronounced by it, subject to legislation passed by parliament and rules framed by the Supreme Court itself. To this day, such legislation has not been framed by parliament and is regulated by the Supreme Court Rules, 1980. PART IV, ORDER XXVI of the rules provides review in narrow circumstances - and for this reason, most review applications are dismissed. The rules also provide that review will be heard by the same bench and the same counsel has to appear who appeared in the original judgment or order, and the review has to be filed within 30 days of the order. The Supreme Court Review of Judgments and Orders Bill 2023, if it becomes law, will change all that.”

Responding to why parliament would feel the need to do this, Supreme Court advocate Salman Akram Raja says that parliament is in effect “expanding the scope of the review to make it look like an appeal. “The Supreme Court Practice and Procedure Bill 2023, had also done that, says Salman Raja, but now after its suspension by the SC, parliament “is taking another bite at the cherry and taunting at the Supreme Court again because the SC had said that you cannot provide an appeal against a judgment of the SC because the constitution has only provided the remedy of a review.”

Lawyer Abdul Moiz Jaferii also agrees that, saying, “This is an attempt to redo what a particular section of the Supreme Court Practice and Procedure Bill, 2023 attempted. It speaks of an appellate process to the exercise of suo-motu jurisdiction by the court. And it does so in specific terms by attempting to draw the power to create such an appeal in the form of a review through the constitution. It adheres to this language and these conditions because they pass the test the SC laid out for the Supreme Court Practice and Procedure Bill, 2023.”

On what can happen after the National Assembly has passed the bill, Salman Raja says, “They are trying to convert the review jurisdiction that the constitution recognizes into in effect an appellate jurisdiction. So, they are expecting to go back to the SC - since this law may also be challenged in the SC - and say that well, you said no appeal is envisaged by the Constitution against an SC judgment but the Constitution does envisage a review and we are saying what that review will be since the Constitution has not explained the scope of the review. Through an act of parliament they are trying to expand the scope of the review to make it look exactly like the law the SC has suspended.”

Calling it a “camouflaged legal attack, by providing for an appeal indirectly”, Barrister Ali says, “not only will this enable the government to file an appeal under the garb of a review in orders made by the Supreme Court to enforce the within 90 days constitutionally stipulated period of elections, it will also allow the government to try and bring legal challenges to other important orders and judgments, for example the life-long disqualification of Nawaz Sharif and Jehangir Tareen. This would also mean that some judges who have been ignored in constitutional benches, will also become a part of such benches and may pen strong dissenting notes.”

Speaking to the intent behind the bill, Moiz Jaferii says that “once this law comes into effect, the government could appeal the SC decision to set aside the Supreme Court Practice and Procedure Bill, 2023. And the court would be required to make a bench larger than the one afforded in the first round.” Agreeing with Moiz Jaferii, Barrister Ali Tahir adds: “In my opinion, the most nearer object in passing the bill would be to challenge the orders of stay on the SC Practice and Procedure Bill, 2023, and to drag its feet on the elections matter by filing a review on the recent orders as it seems the government has conclusively decided not to hold elections at the moment.”

While conceding that “such judicial reforms are a need of the time, and been a long demand of legal practitioners,” Barrister Ali does feel that “the timing and urgency of the bill definitely points towards bad faith; for such an important legislation no stakeholders, including courts and lawyers, were consulted and no real debate in the parliamentary committees is expected either.”