Opportunity to end the impasse still exists: Yes, CJP is already looking for silver lining

ISLAMABAD: Chief Justice of Pakistan Umar Ata Bandial said the judiciary and the executive must interact for the preparation of the laws concerning courts’ independence.

“Let’s explore the silver lining, bring stability in the country, and adopt the right course of action, as the temperature would not help the economy,” the chief justice said while heading a three-judge bench that on Monday to hear the review petition of the Election Commission of Pakistan against its order dated April 4, 2023, to hold general elections in Punjab on May 14.

Commenting on the formation and proceeding of the inquiry commission, the chief justice said that the attorney general for Pakistan (AGP) read five-judge bench’s order before the Inquiry Commission, adding the order records important points.

He said the SC does not want to strike down the law. “We are sitting to protect and defend the constitution and enforce the fundamental rights.” He noted that the law (Supreme Court (Review of Judgments and Orders) Act, 2023) is being made in a secret and coercive way, while it should be transparent.

Justice Bandial said it is a historical accident when this Court had chief justice and acting chief justice. He said the chief justice nominates the judges for the commission.

“No one should break the conventions set in Memo Commission, Abbottabad Commission, and the Commission of Saleem Shehzad.” In all these cases, the chief justice had passed the order and nominated the judges for commission and then the government issued notifications. However, in the instant matter, the government acted unilaterally.

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The question arises why break the norm. “If you (the government) want to investigate the cases then do try to break the normal course.” The chief justice said had he been consulted he definitely not liked to sit in the commission but have recommended some other judge.

Attorney General for Pakistan Usman Mansoor Awan said the Supreme Court (Review of Judgments and Orders) Act 2023, has been assented by the president. It enlarges the scope of the Supreme Court.

The chief justice noted that the Supreme Court (Practices and Procedures) Act 2023 does affect our work. He said the government can enlarge the jurisdiction of the Supreme Court but cannot curtail it. “You are trying to interfere (with) our management.” Cleverly played in Section 5 of the law. He said aggressive attitude would not help.

The attorney general at the outset informed that the Supreme Court Review of Judgments and Order Act, 2023 has been passed after the president assented to it on Friday, “while I received the copy on Saturday and it will be notified today (Monday).”

He said Section 2 of the Act enlarges the jurisdiction of the Supreme Court as the scope of review on both facts and law, shall be the same as an appeal under Article 185 of the Constitution.

Justice Munib remarked, “The ECP lawyer has a smile on his face after hearing about the Supreme Court (Review of Judgements and Orders) Bill 2023.” Sajeel Sheryar Swati, representing the Election Commission of Pakistan (ECP) said: “I wish it would have happened earlier.”

The chief justice said it means that now a larger bench will hear the review, adding no minimum member given. This is interesting, the CJP said, and added Entry 55 of the Legislative List talks to enlarge the jurisdiction. The attorney general replied Entry 55 does not matter as the existing jurisdiction of the Supreme Court has been enlarged through this law.

The chief justice observed that the other case [Supreme Court (Practices and Procedures) Act, 2023] is fixed on Thursday. He asked the attorney general to get instruction from the government on it and said the apex court is for the enforcement of fundamental rights, which is also the salient feature.

“We understand that the jurisdiction of Article 184 (3) requires some form of substantive review. Swati and you (the AGP) have cited the judgments of the apex court that there should be a substantive review. Indian law is confined to proper hearing and the element of bias. “What is the scope of curative view, we are examining it.”

The chief justice asked now they will hear the review petition under this law. He noticed that as no one from the other side (the PTI) was present; therefore, the case was adjourned indefinitely. The CJP asked the attorney general “let’s then meet on Thursday”.

Copyright Business Recorder, 2023