SC cannot suspend law one after another: CJP Bandial

ISLAMABAD: The Supreme Court on Tuesday rejected the plea seeking suspension of the Supreme Court (Review of Judgments and Order) 2023 and fixing it for the larger bench hearing the Supreme Court (Practice and Procedure) Act 2023.

During the hearing, Chief Justice Umer Ata Bandial observed that the court cannot suspend the law one after another but said if the case being made against the law was not strong, then rules and procedures for moving forward will be set.

A three-member bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen and Justice Munib Akhtar, resumed hearing of the review petition of the Election Commission of Pakistan as well as the petitions challenging the vires of the Supreme Court (Review of Judgments and Orders) 2023.

The Election Commission of Pakistan (ECP) had filed the review petition in the apex court against its verdict of April 4, setting May 14, as the date for holding elections in Punjab. Similarly, Ghulam Mohiuddin, Zaman Khan Vardak and the Jurists Foundation through its CEO had challenged the vires of the Supreme Court (Review of Judgments and Orders) 2023.

On the last hearing held on June 7, the court had clubbed the recently-enacted law, the Supreme Court (Review of Judgments and Orders) Act 2023 with the petition of the Election Commission of Pakistan (ECP) seeking a review of the apex court order of April 4, setting May 14 the date for holding elections in the province of Punjab.

On Tuesday, Riaz Hanif Rahi, one of the petitioners, asked the court to take up his petition, challenging the Supreme Court (Review of Judgments and Orders) Act 2023. Similarly, Barrister Ali Zafar, counsel for Pakistan Tehreek-e-Insaf (PTI), informed the court that they had also filed an application, pleading for becoming a party in the petitions, challenging the Supreme Court (Review of Judgments and Orders) Act 2023.

On the court query, the counsel told the court that application was filed by Umer Ayub on behalf of PTI. The court then accepted the plea of PTI counsel. During the hearing, Sajeel Shehryar Swati, counsel for the Election Commission of Pakistan (ECP), submitted before the court that as per the Supreme Court (Review of Judgments and Orders) Act 2023, their review petition should be heard by a larger bench. He submitted that as the court is looking into the vires of the law and until the court gives its decision, his arguments in the ECP review may not be heard. The court agreed with the ECP counsel.

During the hearing, CJP Bandial highlighted certain loopholes in the Supreme Court (Review of Judgments and Orders) Act 2023. He observed that a ‘super appeal’ has been created through this law. “Don’t you think they should have made this law carefully rather than hastily,” the CJP asked Pakistan Tehreek-e-Insaf’s counsel Ali Zafar. He said the parliament could have given the effect of Article 187 of the Constitution for doing complete justice in review jurisdiction. He also referred to the example of India wherein review jurisdiction was widened on two grounds. The chief justice noted that through this law, the legislators created jurisdiction of review equal to an appeal. If the case being made against the law is not strong, then rules and procedures moving forward will be set, said the CJP.

The counsel for the petitioner, Zaman Verdak, pleaded with the court to suspend the Supreme Court (Review of Judgments and Orders) Act 2023 and fix the matter before an 8-member larger bench hearing the Supreme Court (Practice and Procedure) Act 2023. The court, however, rejected the plea of the counsel for the petitioner. Chief Justice Umer Ata Bandial observed that the court cannot suspend the law one after another. “First we have stayed the one law, Supreme Court (Practice and Procedure) Act 2023, therefore we cannot suspend the other,” the Chief Justice remarked. “Tell us under what principle should we declare void the Supreme Court (Review of Judgments and Orders) Act 2023,” Justice Ijazul Ahsen asked the counsel for the petitioner.

The counsel for the petitioner said that it is contrary to Article 10 of the Constitution adding that the review act is total interference in the independence of the judiciary. He submitted that the purpose and objective of both the laws are the same, adding that giving the right of appeal through this legislation is against the Constitution. Justice Munib Akhtar, however, observed that both the laws are related to separate jurisdictions.

Meanwhile, Barrister Ali Zafar submitted before the court that under Article 188 of the Constitution, the review has been mentioned adding that the language used in the 1956 Constitution regarding review has been repeated in the 1973 Constitution. The concept of the final decision of the Supreme Court is mentioned in the Constitution, Ali Zafar submitted adding that the Supreme Court is empowered to review its judgments.

He further submitted that evidence is not re-examined in the review as its jurisdiction could not be like an appeal. Review and appeal have separate jurisdiction and the Constitution does not talk about an appeal against the Supreme Court’s decision, Ali Zafar contended. “Review is only filed where there is an error on the main judgment of Supreme Court but here under the new law the review was given the powers of appeal,” Zafar submitted. He recalled that judges like Justice Durab Patel and Justice Fakhruddin G Ibrahim had issued verdicts in this regard.

Justice Munib Akhtar asked the learned counsel if tomorrow, the full court changes the rules, then what will happen? Even rules do not have priority over the Constitution, Ali Zafar replied.

If such legislation were made, then tomorrow laws pertaining to second appeal may come, the PTI counsel contended adding that if the right of appeal over appeals were given, then the decisions of the Supreme Court will not get finality and by doing this another Supreme Court will be established within the Supreme Court.

Later, the court adjourned the hearing until today (Wednesday).