ISLAMABAD: The Supreme Court decided to hear the review petition of the Election Commission of Pakistan (ECP) and the petitions against the Supreme Court (Review of Judgments and Orders) Act, 2023 on June 13.
A three-judge bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, on Wednesday, assembled to hear the petitions against the Act and ECP review petition, but after the submission of counsel Pakistan Tehreek-e-Insaf (PTI) Chairman clubbed the matters.
The chief justice observed that the government and all the constitutional institutions are showing maturity; otherwise, they had protested in front of the Supreme Court to hamper the process of justice. Now they wanted to proceed with the cases in accordance with the law, adding now their thinking is not arithmetic (that five-member or larger bench hears the cases).
The chief justice, in an order, dictated in the courtroom, said: “We would presently fix both the matters for Tuesday (June 13). The principal effort would be to proceed with the review petition and to arrive at the decision, it added.
The court issued notices to the Principal Secretary to President, the federation through secretary Parliamentary Affairs and the Attorney General for Pakistan on the constitutional questions raised in the petitions.
Three constitutional petitions were filed challenging the vires of the Supreme Court (Review Judgments and Orders) Act, 2023.
The order said that the main contentions of the petitioners are that enlargement of the review jurisdiction is to the ambit of appellate jurisdiction under the provisions of Entry 55 of the Federal Legislative List.
They contended that the conferment of the appellate power in the review was tantamount to enlarging the review jurisdiction. Such enlargement is not envisaged in Article 185 of the constitution; therefore, the constitution amendment is necessary with respect of the Review Act that purportedly has the same effect as Supreme Court (Practice and Procedure) Act, 2023, which is already under challenged and suspended by this Court on April 13.
An eight-judge bench of the Supreme Court on April 13 declared: “The moment Supreme Court (Practice and Procedure) Bill, 2023 receives the assent of the President or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the Act that comes into being shall not have, take or be given any effect nor be acted upon in any manner.”
Earlier, lawyer Ali Zafar submitted that the Supreme Court (Review of Judgments and Orders) Act, 2023 is contrary to the constitution. He said it is like that of the Supreme Court (Practice and Procedure) Act, 2023.
He said restrictions placed in the Act will not apply to the ECP review petition that a larger bench hears it. He argued that if the apex court comes to the conclusion that the Act does not apply, then the bench can keep hearing the arguments and decide the case. But if it finds that the law is valid then it can constitute a larger bench for hearing the review petition.
The chief justice questioned how the review is decided when there is a procedural hurdle because of the requirement of a larger bench in light of the Review Act. If a larger bench is constituted, then the review petition would have to be heard again.
Ali Zafar said this is a national issue, adding it is not possible to roll back the Supreme Court judgment to hold elections in Punjab on May 14, but this case will set the principle regarding holding of elections in 90 days. How and when this period is disregarded, and what are its consequences?
He submitted that when this bench had asked the ECP counsel that he was sure that the elections would be held on October 8 after the May 9 incidents. The lawyer replied that he was not sure.
Ali Zafar said this case relates to the enforcement of constitutional command, and not of arithmetic that three-member or five-member hear the case.
The chief justice said the duty of the constitution is not fulfilled, adding everything cannot be done coercively.
Ali Zafar said at 12:00 am on May 15 the constitution died, as the 90-day period for holding elections was violated and the Supreme Court judgment was not implemented. Time is of the essence in decision-making.
He further argued that the two provinces are without assemblies and elected governments. Though it is pretended that the constitution is followed, Article 5, which talks about obedience to the Constitution and law, is obligatory, yet all of them have been violated. “My plea would be to decide the ECP review petition.”
The chief justice said that the good thing is that the law is limited to the cases heard under Article 184 (3), while SC (Practice and Procedure) Act was made in a hurry. The CJP asked the attorney to adopt a course to save time. The case was adjourned until Tuesday.
Copyright Business Recorder, 2023