The Supreme Court (SC) on Friday struck down the Supreme Court (Review of Judgments and Orders) Act 2023, which expands the scope of a review petition, terming it unconstitutional.
A three-member SC bench — comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar and Justice Ijazul Ahsan — had reserved its verdict in the case on June 19 with an observation that decision on the case would 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.
The law is “aimed at facilitating and strengthening the Supreme Court in exercising its powers to review its judgements and orders”.
It expanded the jurisdiction of the court by giving a right to appeal under Article 184(3), which grants the SC powers to issue an order if it considers a question of public importance with reference to the enforcement of fundamental rights involved.
Under the law, the scope of a review would be similar to Article 185, which confers appellate jurisdiction to the top court.
The detailed verdict said that the law was “repugnant to and ultra vires the Constitution” while being beyond the legislative competence of Parliament.
“It is accordingly struck down as null and void and of no legal effect,” the order said.
The order said that any attempt by way of ordinary legislation to interfere in the scope of the SC’s powers and jurisdiction, including but not limited to its review jurisdiction, would constitute a wrong and erroneous reading and interpretation of the Constitution.
The judgement further said that there was no “express authorisation” in the Constitution which empowered Parliament to enlarge the SC’s review jurisdiction under Article 188.
“In addition, the 2023 Act does not ‘enlarge’ review jurisdiction, it ‘creates’ a new appellate jurisdiction which has no constitutional basis, sanction or authorisation,” the order said.
It further said that 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”.
It said that a constitutional amendment was needed to convert the court’s review jurisdiction into an appellate jurisdiction.
“It is a well-recognised principle that ordinary law cannot amend, change, delete of add to the Constitution,” the order said.
The order said that the so-called “enlargement” of the court’s jurisdiction had “no constitutional sanction or basis” and was not anchored in any provision of the Constitution relating to the judicature or the SC.