The apex court on Wednesday did not suspend the Supreme Court (Review of Judgements and Orders) Act, 2023, a law that paves the way for formation of a larger bench to hear review petitions filed against the order of a Supreme Court bench.
However, the bench also did not form a larger bench to hear the Election Commission of Pakistan’s (ECP) review petition against its April 4 order—to hold polls in Punjab on May 12—as it decided to hear the petitions filed against the review law together with the poll authority’s review plea.
When the three-judge bench – led by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar – on Wednesday took up the pleas filed against the SC (Review of Judgements and Orders) Act, 2023, CJP Bandial noted that election is a national issue.
He said May 14 – the date set by the bench for holding elections for the Punjab Assembly – had passed.
“However, against the backdrop of the May 9 events, the ECP is now not even confirming if it is all set to hold elections on October 8,” he said.
On May 9, rioters allegedly belonging to the Pakistan Tehreek-e-Insaf (PTI) party vandalized and set fire to government and military property and memorials in the wake of the arrest of the PTI chief.
October 8 is the date when elections for the National Assembly and two provincial assemblies will take place if parliament and the provincial legislatures complete their five-year term.
Interestingly, Senator Ali Zafar – the counsel for the PTI which is a respondent in the ECP case – gave arguments against the Supreme Court (Review of Judgements and Orders) Act, 2023 despite the fact that the PTI has not challenged the law.
Attorney General Mansoor Awan objected to Zafar’s arguments against the law. He said Zafar can be heard only if he challenges the law and the court issues notices on his petition.
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In his arguments, Ali Zafar said the Supreme Court (Review of Judgements and Orders) Act, 2023 is ultra vires of the Constitution. He also urged the court to decide the ECP’s review plea.
Apparently referring to the ruling coalition’s protest sit-in outside the Supreme Court building on May 15, he said on the night of May 15 he felt as if the Constitution had “died”. Zafar said all state functionaries including the prime minister and the CJP had taken an oath to uphold the Constitution.
“When the Supreme Court (Review of Judgements and Orders) Act, 2023 was passed, I was in the Senate. I asked the ruling coalition as to how they could introduce a law that is against the Constitution. However, the house passed the law in five minutes without holding any discussion,” he said.
He said some good amendments have been made to Article 184 (3) but the problem is that law concerning the independence of judiciary can only be changed through a constitutional amendment.
The CJP agreed that the new law related to widening the scope of review in matters decided under Article 184 (3) of the Constitution is a good thing. “The error is that the law has turned the review under Article 184 (3) into an appeal.”
He said the ECP’s counsel gave arguments in support of expanding the scope of the review. “If a larger bench is formed to hear the ECP’s review plea, then the ECP’s lawyer can resume his arguments.”
Justice Bandial appreciated that the government and its departments have decided to abide by the law.
Apparently alluding to the government’s earlier insistence that the apex court had rejected some petitions against delay in announcement of polls in Punjab by a vote of 4 to 3 and not upheld them by a vote of 3 to 2, he said now the government’s thinking is not based on “mathematics but on law and facts.”
The CJP said the court appreciates the good laws made by the government.
The top judge also alluded to the ruling coalition’s protest outside the Supreme Court building on May 15 against the allegedly partial treatment of the PTI chief who was released on the order of the apex court two days after his arrest on May 12.
“The government was staging a protest outside our gates. Was that protest aimed at thwarting justice? The work that we are doing is a divine job. Attempts at interfering in our work are like thwarting justice.
The CJP said the bench would try to decide the ECP’s review petition at the earliest. The court adjourned till June 13 [Tuesday] after the CJP announced that the bench would hear the case from next week on a daily basis.
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