In a case resolved under Article 184(3), the Supreme Court on Friday ruled that a piece of legislation expanding the extent of review authority was unconstitutional.
A three-judge bench led by Chief Justice Umar Ata Bandial and including Justice Ijazul Ahsan and Justice Munib Akhtar concluded that the Supreme Court (Review of Judgments and Orders) Act 2023 was “ultra vires” of the Constitution since it went beyond parliament’s authority to pass laws.
In accordance with Article 184(3) of the Constitution, the petitions can be filed, and (ii) the Supreme Court (Review of Judgements and Orders) Act, 2023 is contrary to and beyond parliament’s authority under the Constitution of the Islamic Republic of Pakistan, 1973. The 51-page ruling written by Justice Ijazul Ahsan states that it has been “struck down as null and void and of no legal effect.”
The bench delayed ruling on the petition challenging the law until later on June 18.
A day after the National Assembly was dissolved, the verdict was announced. Top attorneys have expressed concern about the verdict’s timeliness, which doesn’t allow parliament time to evaluate the new law on the same subject.
According to the court, the issue at hand is whether the legislature can, through ordinary legislation, override the rules framed by the Supreme Court of Pakistan in exercise of express powers available to it under Article 188 of the Constitution and overturn consistent judicial pronouncements embodying the contours and limits of Article 188 of the 1973 Constitution and, in doing so, for all intents and purposes, create a right of appeal by indirectly creating a right of appeal.
The ruling states that the 2023 Act appears to be an open and obvious encroachment of the judicial branch’s autonomy. The Constitution of 1973 reads, “the independence of the judiciary shall be fully secured,” making this a fundamental principle.
Any law that undermines judicial independence is certain to fail from the start and is therefore unconstitutional and of no force or effect.
Since judicial independence is a central tenet of the 1973 Constitution, and since the 2023 Act appears to have an impact on that independence at first glance, we have no doubt that the questions raised by these petitions are of public importance within the meaning of Article 184(3) of the Constitution.
“Furthermore, any intrusion by any organ of the state in independence of the judiciary affects every citizen of the country and, therefore, is a question of great public importance,”
The court ruled that Parliament lacked the authority to pass the 2023 Act amending Article 188 in the way that it did.
“Where such rule making power has been exercised by the court, any legislation by placing reliance on Entry 55 under the garb of “enlargement of jurisdiction of the Supreme Court” is indisputably unconstitutional and an intrusion in the independence of the judiciary, especially where a right of appeal is sought to be provided when none has been provided by the Constitution.
To quote the Constitution of 1973 of Pakistan: “The so-called enlargement has no constitutional sanction or basis and is not anchored in any provision of the 1973 Constitution relating to the judicature or the Supreme Court of Pakistan.”
We also point out that, as far as orders/judgments passed under Article 184(3) are concerned, Article 188 is superfluous because Section 2 conflates the Appellate jurisdiction of the Supreme Court with that of review jurisdiction under Article 188.
This looks like an attempt to rewrite the Constitution’s judicature scheme, which might weaken, undermine, and erode the supreme court’s authority and jurisdiction.
Orders and judgments issued by the Supreme Court under Article 184(3) are final under the Constitution, with the possible exception of appeal jurisdiction under Article 188.
Since the finality of the judgments and orders passed by the Supreme Court under Article 184(3) is now subject to re-hearing and re-appraisal by a larger bench hearing the review as an appeal, Section 2 actually reduces rather than expands the jurisdiction of the Supreme Court under Article 184(3).
“It may be observed that viewed from a different perspective, altering multiple Constitutional articles (including articles 184(3), 185, and 188) and modifying the 1980 Rules would be required to “expand” review jurisdiction and convert it into an appeal.
Articles 238, 239, and 269 of the 1973 Constitution must be followed in order for the 2023 Act to be able to change, modify, or amend the constitutional provisions.
The 1980 Rules were put on a higher pedestal than regular legislation since they were issued under Article 191 (the ability to make rules of this Court). It is not within the legislature’s purview to alter, modify, amend, or supplant the same by routine legislation.
Orders XIII and XVII of the 1980 Rules govern review petitions since, as stated in Section 3, they are not petitions seeking leave to appeal under Article 185(3). After the necessary procedures have been followed, the case will be heard by a Bench appointed by the Chief Justice of Pakistan in accordance with Order XI of the 1980 Rules.
As such, “the question whether the legislature can enact a law on the subject of the constitution of benches has to be answered in the negative.”
“Since this court has declared that it is the Chief Justice’s prerogative under the 1980 Rules to constitute Benches and to fix the number of Judges who constitute the said Benches, it would be close to irrational to hold that while the original exercise and invocation of jurisdiction under Article 184(3) is the Chief Justice’s prerogative under the 1980 Rules, the legislature has the authority to supersede the Chief Justice and enact rules that supersede the Chief Justice’s prerogative.”
To suggest that the legislature can legislate on 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, the cited provision is counter to the clear mandate of the Constitution of 1973. We also find that Sections 2 and 3 of the 2023 Act violate 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, which weakens this Court’s ability to protect and enforce the fundamental rights of the people of Pakistan.
The court ruled that “Section 2 of the 2023 Act, which is the heart of the 2023 Act, is ultra vires the Constitution, the entire super structure built on it in the form of sections 3, 4, 5, 6 & 7 are destined to fall to the ground.”
It is a well-established rule of law that if the central elements of an Act are found to be unconstitutional, then the supporting sections must also be struck down because they cannot operate independently.
Parliamentary measures believed to have been passed on the basis that the act’s central tenet, that the review be converted into an appeal before a bigger court, is constitutional.
If Section 2 is found to be unconstitutional and invalid, the rest of the Act as a whole should also be declared null and void.
“The authority to overturn legislation must be used with extreme prudence. No statute should be declared unconstitutional unless there is no reasonable interpretation that may bring it into conformity with the provisions of the Constitution. After comparing the 2023 Act to the Constitution and applying the established legal standards, we have determined whether or not to rule that the 2023 Act is unconstitutional.
However, “despite our earnest effort to harmonize the Act with the provisions of the Constitution,” we have come to the following conclusion: “the 2023 Act is so patently, manifestly, and irretrievably in conflict with and violative of various Articles of the 1973 Constitution that it is not possible to harmonise the two in any manner whatsoever.”
Aspects of Law
An attorney for Abdul Moiz Jafferi said in response to the ruling that the Supreme Court has ignored the problem that the law was meant to solve.
He said, “This is a problem of the court’s own creation,” noting that, by elevating the court’s rule-making power because it is derived from the constitution, the court had overlooked the fact that the very same article conferring this power also subjected it to regular law making, such as the statute at issue.
By extension, “it makes the entire enlargement attempt about an impingement upon judicial independence,” he said.
He claimed the court was acting defensively by issuing this ruling in an effort to safeguard its jurisdiction. He added, however, that the court’s apparent lack of interest in the territory’s upkeep and deterioration constituted a red flag.
Jafferi argued further that the judgment made reference to the finality of court orders without taking into account the exceptional nature of 184(3) orders, which do not have an adequate appeals process.
The ruling “does not take into account the fact that the rules were drafted at a time when the exercise of suo motu jurisdiction was very different from what it is today.”
