In its detailed verdict on the government’s review petition against a judgement nullifying the decision of the Parliamentary Committee for appointment of superior court judges, the Supreme Court (SC) on Friday held that Article 184(3) of the constitution expressly empowered the apex court to exercise the powers vested in a high court under Article 199, subject to the two-fold rider that the matter should be one of public importance and should relate to the enforcement of fundamental rights.
“In the present cases, we have already exercised our jurisdiction under Article 184(3) ibid and find no justification for recalling the judgment under review, solely for the purpose of directing the respondents (petitioners) to approach the High Court and then to approach the apex court again if aggrieved by the decision of the High Court,” said the detailed verdict.
The court addressed another contention of Additional Attorney General KK Agha that various parties, including four advocates general, in the petitions challenging the 18th Amendment pending before a 17-member SC bench stood prejudiced by the judgement under review, as no notice was given to them before deciding the petitions.
The court held that this argument was based on the premise that certain issues, which were argued before the larger bench in said case, had yet to be finally determined, thus instead of deciding those issues in the instant case, the bench should have either clubbed these proceedings for adjudication with the 18th Amendment cases or waited for the final decision in that case.
In response to Agha’s submissions focused on the justifiability of the decisions of the Parliamentary Committee, the detailed verdict said, “We have considered this argument and find it to be without force. Firstly, the justiciability of the decisions of the committee was not a central issue in the 18th Amendment cases; any submission thus made by the Federation regarding the justiciability of the Committee’s decisions was only ancillary to the argument which concerned this Court’s power to judicially review a constitutional amendment.
It must be stated clearly that this issue has not been touched by the judgment under review and so is a matter which remains to be settled by the larger bench in the 18th Aamendment cases.” The court held that Agha’s submission that the impugned judgement had prejudiced the federation because it made observations relating to the scope of ouster clauses, independence of the judiciary, judicial review, etc did not carry much weight. “Our observations regarding these matters are based on the limited context and issues arising in these cases,” the court said.
It said that Agha’s submission that the failure of the court to consider Article 10A and the consequent denial of the implied right of at least one appeal and the implications of this omission had not been examined in the judgement under review, and that this was a new argument which was never raised during arguments in the petitions, so in principle, it was reason enough to dismiss this argument, since it had long been settled that new issues were not to be entertained at the review stage.
“However, even if we were to consider this argument, it would have made no difference to the outcome of the review since it is misconceived because it ignores the express provisions of Article 184 (3) of the Constitution. These review petitions are, therefore, dismissed,” the court held.