PML (N) hinges on an appeal and a review

By Qamar Bashir

PMN (N) has made the fully exonerated return of Nawaz Sharif a prerequisite for agreeing to conduct elections on time; otherwise, it has threatened to do everything in its power to delay the elections until the condition is met. While exploring all possible avenues to accomplish this objective, the government is primarily focused on finding a legal solution to this complicated problem. In a last-ditch effort, it has enacted the Supreme Court Practices and Procedure Act 2023 and amended the Election Act, 2017. First was suspended prior to its conception and the 2nd is likely to suffer the same fate sooner or later. Ironically, the president signed it and made it a law, despite the fact that it was subjudice before the Supreme Court. It appears that the President erred in his judgment as he was not supposed to sign it until the court  had rendered a final decision or lifted the stay. However, it is beyond the scope of this article to delve into what the president can and cannot do in greater detail.

Constitutionally, the passing of the Supreme Court Practice and Procedure Act was invalid as the supreme court cannot hear appeals against its own decisions, but it can hear appeals against the decisions of its subordinate courts, including provincial high courts. Article 185, which establishes the appellate jurisdiction of the Supreme Court, states, “The Supreme Court shall have jurisdiction to hear and decide appeals from judgments, decrees, final orders, and sentences of a High Court.” Whereas article 189 establishes the finality of the supreme court’s decision in an unambiguous manner. It states, “Any decision of the Supreme Court that decides a legal question or is based on or articulates a legal principle shall be binding on all other courts in Pakistan.”  The supreme court stated in SMC No.1/2023, etc., that “this jurisdiction of the Court is special and exceptional, because in the exercise of it, the Court acts as the first and final arbitrator, leaving a party aggrieved by the Court’s decision with no recourse to a higher court.”  The Supreme Court is the court of last resort because it is the nation’s highest court, its decisions are binding on all subordinate courts, and there is no higher court to which one can appeal. If the Supreme Court could reverse its own decisions, there would be no certainty in the law, and individuals would be unaware of what the law is.  In 2018, while arguing before the Supreme Court, a senior advocate urged the court to amend its rules to grant litigants the right to appeal its decisions under Article 184(3) of the Constitution. The chief justice responded, “Lawmakers may use their authority to amend this constitutional provision,” adding, “The court will later determine whether or not the legislature has the authority to amend Article 184(3).” In fact, courts vigorously defend the independence of the judiciary, as evidenced by the majority opinion of the Supreme Court in the 21st Amendment case, in which the court ruled that the highest court can review constitutional amendments to determine if they conflict with the independence of the judiciary. The court disregarded even the numerous resolutions passed by the Pakistan Bar Council to amend Article 184(3) to ensure equitable trial and due process of law in light of Article 10-A of the Constitution. Former law minister Dr. Farogh Nasim, for example, vehemently opposed the right of appeal against apex rulings by courts in its decision under Article 184(3) of the Constitution.

The crux of the arguments presented to the Supreme Court of Pakistan during the hearing on the challenged act was whether the new law’s intent and purpose was to pursue an appeal or a review. However, the defense also knew that if it yielded in favor of review, the case would be lost even before it was argued due to the limited scope of the review, and if it agree in favor of appeal, it would require a constitutional amendment that even if passed, would again be subject to judicial review if it encroach upon the independence of the judiciary.

In contrast to the right of appeal, the supreme court of Pakistan has the power of review, as stated in article 188 of the constitution: “The Supreme Court shall have the power, subject to the provisions of any Act of [Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it. In accordance with Supreme Court Practice and procedure rules, the review petition must be filed within 30 days of the date of the Supreme Court’s judgment or order. However, unlike an appeal, which entails a rehearing of the case in its entirety, the review has a limited scope and is typically limited to errors apparent on the face of the record or the discovery of new and significant evidence that was unavailable during the original proceedings.

In its ruling on CIVIL REVIEW PETITION NO.296 of 2020, the supreme court stated: “Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on the basis of an obvious error in the record.”  A review can only succeed if it has a material effect on the result of the case, i.e., if it changes the outcome of the case. This test was outlined by the Supreme Court in Abdul Ghaffar-Abdul Rehman vs. Asghar Ali (PLD 1998 SC 363) at paragraph 17 and has been followed ever since. A substantial irregularity in a judgment is insufficient to convince this Court to reverse its prior decision. This criterion makes it abundantly clear that a unanimous and majority judgment of the Court can be challenged only if correction in these judgments can truly change the outcome/result of a case. However, there is a silver lining: the 30-day limit has not been set by the constitutions, so it is subject to amendment by the parliament or the supreme judicial council as a matter of practice and procedure.

Realizing the futility of the impugned law, the government realigned its legal course and this time chose to make an amendment in the Election Act 2017 to make another backdoor attempt to bring Nawaz Sharif and Jehangir Tareen back in action. The impugned amendment made in Section 232 (Qualifications and Disqualifications) of the Election Act, 2017 says, “. “Notwithstanding anything contained in any other provision of this Act, any other law for the time being in force and judgment, order or decree of any court, including the Supreme Court and a high court, the disqualification of a person to be elected, chosen or to remain as a member of the Parliament or provincial assembly under paragraph (f) of clause (1) of Article 62 of the Constitution shall be for a period not exceeding five years from the declaration of the court of law in that regard and such declaration shall be subject to the due process of law,” but perhaps while in their desperation to find a solution the government overlooked that parliament cannot overturn or modified a past decision of the supreme court as being the highest court in the nation, the Supreme Court’s decisions are final and binding on all other courts and parties. The only means to reverse a Supreme Court ruling is through a constitutional amendment, which requires the approval of two-thirds of both houses of Parliament and ratification by a majority of provinces. This is not only constitutional, but also necessary for the stability and orderliness of society.

Though Parliament in its right can introduce new laws or amend existing laws to modify the legal framework or provide a legislative response to the issues raised in the court’s decision, it must still adhere to the Constitution of Pakistan. If the Supreme Court determines that a law or amendment made in the existing law was unconstitutional, it has the authority to declare it null and invalid therefore before proceeding to amend the constitution, the Parliament must also know that its legislative authority is restrained by the Supreme Court’s authority to interpret the constitution and invalidate laws that are inconsistent with it.

It is only a matter of time before the amendment in the Election Act is  challenged before the supreme court, as being in conflict with the applicable provisions of the constitution and struck down. The best course of action, in this challenging scenario, for the government is to employ all of its resources to ensure that no one challenges the amendment and that the supreme court does not take suo moto of this constitutional anomaly, which is a remote possibility but worth attempting given that the call for elections is in the air and the legendary wind is also blowing in favor of holding elections on time.

Former Press Secretary to the President

Former Press Minister to the Embassy of Pakistan to France

Former MD, SRBC