After the announcement of Supreme Court (Review of Judgments and Orders) Act 2023 as “unconstitutional” by Pakistan’s top court, legal experts and political analysts have shared their diverse views on the decision.
The implications of the decision, announced earlier today, extend to thwarting the aspirations of disqualified politicians who sought recourse against unfavourable judgements.
The development comes at a critical point in Pakistan’s political landscape when prospects of two prominent political figures — Nawaz Sharif of the Pakistan Muslim League-Nawaz (PML-N) and Jahangir Tareen of the Istehkam-e-Pakistan Party (IPP) — remains in limbo, as their ambitions of re-engaging in electoral politics remain threatened.
Announced by the Supreme Court’s triumvirate bench — led by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar — the decision came as a finale to the six hearings from June 7 to June 19, which scrutinised numerous pleas contesting the legality of the law, which had been enacted in late May.
The Supreme Court Review Act is against the Constitution, CJP Bandial said, adding that the verdict was passed unanimously and a detailed order will be issued later.
The detailed 87-page long order said the law is “repugnant to and ultra vires the Constitution […] being beyond the legislative competence of the Parliament.”
“It is accordingly struck down as null and void and of no legal effect,” the order mentioned.
Here’s what the analysts and legal experts said on the major SC decision:
‘Unjust and cruel judgement’
Commenting on the verdict, Ahmad Bilal Mehboob, the chief of the Pakistan Institute of Legislative Development and Transparency (Pildat), said this development is unfortunate, as this was a law passed by the parliament.
“Nullyfing it will further intensify the existing confrontational situation between the state’s two major pillars, — the judiciary and legislature,” he told Geo News.
Mehboob added that no appeal can be filed against it in light of Article 184 (3), which is “a very cruel provision”.
“If the Supreme Court takes a suo motu and issues a verdict on any matter, then no one can challenge it. All bar associations across the country had demanded that something should be done to ensure an appeal against it,” he said.
The analyst added that while nothing could be done with regards to an appeal in cases decided under the suo motu powers, as an amendment couldn’t be made in the Constitution, a provision of “an extended appeal” was then given in the new law.
“Declaring it null and void is unjust and cruel,” Mehboob said.
The Pildat chief said that the SC has no reason to declare other legislations null and void.
“If any law is in conflict with the Constitution, then the situation is different. But most laws are not made that way.”
He added that while the National Assembly has been dissolved, the speaker is still present and he must immediately go for a review of the decision.
Mehboob termed the decision as a question raised on the authority of the parliament. “The speaker must file a review against it. If the decision is not challenged, history will remember it as accepted [by lawmakers],” he said.
Not just the attorney general, but other lawyers can also file a review against it, he said.
Commenting about the timing of the decision, the Pildat chief said that the assembly couldn’t have done anything as such even if it existed. But it could have made amendments and passed a law again, he added.
‘Law rightly struck down’
Barrister Rida Hosain said the law converted a review jurisdiction into an appellate jurisdiction through ordinary legislation. As per the law, in cases of judgments of the Supreme Court under Article 184(3), the scope of a review would be the same as an appeal, she added.
“How can a ‘review’ have the scope of an ‘appeal’? They are materially different. A three-member bench has rightly struck this law down,” Hosain said.
She added that the first and fundamental point in the judgment is that the Constitution only provides a review against judgments of the Supreme Court.
“The grounds for a review are far more limited than an appeal. A review is generally limited to considering errors floating on the surface of a judgment. In contrast, an appeal involves an entire re-hearing on the merits of a case,” the lawyer said.
Hosain added that the parliament created a new jurisdiction, which was not contemplated under the Constitution, and that it was an attempt to override it.
“The law eroded the finality attached to judgements of the Supreme Court. Even decisions of the highest court of the land were not final and conclusive, they would be subject to an appeal,” she said, commenting on the SC decision.
The legal expert maintained that the parliament also lacked the legislative competence to pass the law.
“Item 55 of the Federal Legislative List states that the jurisdiction of the Supreme Court can only be enlarged to the extent provided in the Constitution. There is no such authorisation in the Constitution,” she added.
Hosain opined that if a government wants to change the Constitution, it can only do so through a constitutional amendment and not through hurried legislation.
Electoral politics for Nawaz Sharif obstructed
Ansar Abbasi, a senior analyst and journalist, said it seems that the PML-N supremo and PTI Chairman Imran Khan would be barred from the upcoming elections after the SC decision.
“Unfortunately, when the governments and Parliament of Pakistan enact laws, the Supreme Court politicises them and that has increased in the last few months,” he said.
The senior journalist added that the National Assembly was dissolved the day before yesterday, but the decision came today, which has obstructed the PML-N supremo from filing a petition against his disqualification.
“But I think there is still a chance for Nawaz Sharif as the Election Act was amended to reduce the disqualification for a maximum of five years,” he said, adding that while the opportunity is still there, it will have to go to the Supreme Court.
The senior analyst spoke about two laws — Supreme Court (Services and Procedures) Act and Supreme Court (Review of Orders and Judgments) Act.
Regarding the Supreme Court (Services and Procedures) Act, Abbasi said Chief Justice Bandial had stayed it before it was even enacted.
“It was a very unusual thing because the bill was not even enacted and it was still being discussed in the Parliament. But a stay was issued on it,” he said.
Speaking about the Supreme Court (Review of Orders and Judgments) Act, the journalist said that the purpose of the law could be something else; however, it was mainly to bring Nawaz back into Pakistani politics.
He added that as per the current situation, the session judge disqualified the PTI chief in the Toshakhana case, while the SC judgement has blocked Nawaz’s return to electoral politics.
“If the government or PML-N or anyone files a review petition within the stipulated time, Umar Ata Bandial will still be the country’s chief justice,” he said.
“It is very unfortunate that our institutions have always interfered in politics. After this decision, if the next elections are held in 90 days, then the top leadership of PTI and PML-N, whether it is Imran Khan or Nawaz Sharif, will remain excluded,” he said.
‘Legislation struck down following principle of law’
Lawyer Ahmed Pansota termed the judgement “very good”, as it primarily challenges review legislation and there was an attempt to create a provision for appeal through an act of parliament, which could not have been done because Supreme Court appeals under Article 184 (3) is provided under the Constitution.
“Similarly, if there was any appeal to be provided under Article 184 (3) that ought to be done through a constitutional amendment. Here, there was an attempt to achieve that through legislation.
“Therefore, that legislation, per se, has been declared repugnant to the provision of the Consitution, and subsequently, Section 2, which obviously granted that was the essence, as a result of which all other provisions have also been declared.”
“This attempt to achieve something, through legislation, which ought to have been achieved through a constitutional amendment, has been turned down.
He added that according to the principle of law, if something is to be done in a particular manner, it must be done in that manner or may not be done at all.
Pansota said since the law required creating an appeal through a constitutional amendment, but the same was being sought through legislation, hence it was struck down.
‘Very unfortunate’
Former law minister Azam Nazeer Tarar termed the SC ruling as “very unfortunate”, but said that it would not affect former premier Nawaz Sharif’s prospects of returning to electoral politics anytime soon.
Speaking to Geo News after a three-member bench headed by Chief Justice Umar Ata Bandial struck down the new law, the Pakistan Muslim League-Nawaz (PML-N) senator termed the timing of the verdict “important”.
He said that the Constitution had laid down rules of the game for all state organs which was also called trichotomy of powers.
“Courts interfere in the Parliament’s jurisdiction again and again and give verdicts that put a curb on its supremacy […] this is not a good tradition,” he lamented.
He maintained that this has happened in the past and “it weakens the state’s institutions and not strengthens them”.
Tarar added that the timing of the verdict was also painful for him as the verdict was announced after the dissolution of the National Assembly. Therefore, new legislation couldn’t be done in light of the apex court’s directives.
“The law was enacted on the demand of bar councils which were of the view that the scope of the review was so narrow that it would be an injustice to many people,” he added.
He further explained that the judgements law had made it mandatory for the top court to form a bench larger than the one that gave the original verdict.
“Another good thing was that it provided an option to change the lawyer,” he said.
After the SC’s verdict, it was widely believed that the doors on Nawaz Sharif’s electoral politics had been closed.
“This will not affect the prospects of Nawaz Sharif’s return to electoral politics as his lifetime disqualification was undone by an amendment to Election Act 2017,” he clarified.
The disqualification clause in Article 62 of the Constitution was amended and now the disqualification would not be more than five years.
Tarar asserted that it would be against the fundamental rights to bar anyone from seeking votes and going to people.
‘Justly struck down’
Lawyer Sheikh Saqib Ahmed believes that access to justice and credentials of the judiciary, whether lower or apex, have remained a point of discussion in Pakistan.
“However, people in general or a layman can’t comprehend that the judiciary is being driven by the supreme law i.e. Constitution and the laws that the parliament enacts,” he said.
The legal expert added the judiciary is not the ‘maker(s)’ of law, theoretically.
“Nonetheless, Supreme Court is duty bound by the Constitution to guard the true essence of the Constitution and rectify any illegality or irregularity done by the parliament.
In the present case, he added, the apex court has justly struck down the said act and declared the same as ultra vires to the Constitution, as it would have hindered the basic structure of the Constitution, especially proceedings of the Supreme Court, creating more chaos and further uncertainty.
“Prima facie, the parliament has attempted to attain some ulterior motives by enacting the Supreme Court (Review and Judgement Orders) Act 2023 by overlapping the scope of appeal and review,” he said.
Sheikh mentioned that any order of the SC must be treated final subject to review under Article 188 of the Constitution and an appeal to SC against any order from the apex court would distress the current judicial system.
“Furthermore, in recent times, we have also seen that the parliament also passed Supreme Court Practices and Procedure Bill’ 2023 to limit certain powers of the chief justice,” the lawyer said.
He added that the parliament must refrain from acting in any manner in order to achieve political motives on that account. “It must acknowledge and regard the basic doctrine and ingredient of democracy i.e. separation of powers.”
