Article 186. (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.
(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President.
Analysis of Article 186
Whether question is of public importance is for the President to determine and a reference to the SC is in his discretion. But once a question is referred, the Court is under obligation to consider it and give a reply.
SC must not go beyond the reference: When a reference is seeking interpretation of particulars provisions of a bill a party cannot say that doubts also arise about other provisions of the bill. SC must not go beyond the reference to discuss other provisions. (AIR 1968 SC 956)
The question must be precise and specific and the court may refuse to answer a question which is too general. For example, the Governor General’s Reference to Federal Court in 1955 was comprised of four questions. One among them was “What are the powers and responsibilities of Governor General in respect of the Government of the country before the new Constitutional Convention passes the necessary legislation?” to which Federal Court replied that the question is too general and need not be answered. (PLD 1955 FC 435)
Is opinion of Supreme Court of binding nature?
The opinion of the court is in nature of advice, not binding on the referring authority, and is not judicial decision within the meaning of art 189 of the Constitution. It does not prevent the court from giving a contrary decision in a subsequent case coming to it in the normal course.
Opinion of the Supreme Court is just opinion with explanation on the question of law and is not of binding nature and it is up to the President or the Federal Government to act upon it or not. (Al-Jehad Trust Case, PLD 1997 SC 84 (b))
Opinion of the court on the reference by the President is not a judicial decision between the parties but the Court undertakes an extensive judicial exercise during which the arguments advanced by the Advocates appearing on behalf of the parties summoned by the court are evaluated and appreciated and then opinion is formed therefore, it had a binding effect.
(PLD 2005 SC 873 (b))
From the language of articles 189 and 190, it is concluded that opinion expressed by SC in reference under art 186 is required to be esteemed utmost by all organs of the State, therefore, it would be unfair to say that opinion expressed by SC on the Presidential reference u/art 186 has no binding effect. (PSC 2006 (SC Pak) 9 (ccc))
President to act on the advice of Prime Minister
Advisory jurisdiction of the Supreme Court can be invoked by the President on the advice of the Prime Minister…….Article 90 of our 1973 Constitution envisages that the Executive Authority of the Federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 99 provides that all Executive actions of the Federal Government shall be expressed to be-taken in the name of the President. In exercise of powers conferred by both these Articles, the Federal Government has made Rules of Business of 1973; under Schedule V-B, Rule 15-A(1) list is made of cases requiring orders of President on the advice of the Prime Minister, Entry No. 54 specifically mentions Reference to the Supreme Court on any question of law to be filed under Article 186, which is to be done on the advice of the Prime Minister. (Al-Jehad Trust Case, PLD 1997 SC 84 (b))
Presence of the parties
It is also objected to by the learned counsel, that reference is not competent because it is not inter se the parties. This Court in exercise of advisory jurisdiction under Article 186 of the Constitution, has to express its opinion on constitutionality of the Hisba Bill, therefore, presence of the parties is not called for. Advisory jurisdiction of this Court is definitely different and distinct from the jurisdiction under Articles 184 and 185 of the Constitution.
Scope of the art is wide
We feel no hesitation in holding that Constitution makers by using the expression ‘any question of law’ in Article 186 of the Constitution had widened its scope and had also covered disputes which are likely to arise. We may observe that if such construction is not placed on the expression ‘any question of law’ there is apprehension that the provision of advisory jurisdiction will become redundant.
Other provisions of the bill
It is equally important to note that once some of the Sections of a Bill have been declared unconstitutional, it would not mean that leftover Sections of the Bill have been declared in accordance with the Constitution. Their Constitutionality remains open to be questioned, which can be upheld or struck down as or when challenged before a competent forum.
Can President refer a question about a Provincial law?
Objection that President is only competent to refer under art 186 a question of law which relates to Federal Law and not with respect to Provincial law is not sustainable in the view of comprehensive and broad language employed in art 186.
(2006 PSC (SC Pak) 9 (kkk))
Review of Judgments or Orders by the Supreme Court
Art. 188. The Supreme Court shall have power, subject to the provisions of any Act of 1[Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.
Under art 188 SC has the power to review any judgment pronounced or order made by it. The power of review is to be exercised subject to an Act of Parliament and of any rules made by the SC itself. Order XXVI of the SC Rules, 1980 provides for review.
Order XXVI, Rule 1 of Supreme Court Rules, 1980 (amended in 2008) provides that Subject to the law and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule I of the Code and in a criminal proceeding on the ground of an error apparent on the face of the record.
Grounds for review
Order XLVII, rule I of the Civil Procedure Code provides grounds for the review as under:
(i) discovery of new and important matter or evidence which, after the due diligence, was not within the knowledge of the party seeking review or could not be produced by it at the time when the decree was passed or order made, or
(ii) on account of some mistake or error apparent on the face of the record, or
(iii) for any other sufficient reason.
Who may apply for review: Application for review can only be made by a party aggrieved as required in order XLVII of the Civil Procedure Code.
When Review may not be granted?
- If Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the ground that court took an erroneous view or that another view on reconsideration is possible.
- Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced.
- Ground not urged or raised at the hearing of the petition or appeal cannot be allowed to be raised in review proceedings.
Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberation and have a material bearing on the final result of the case. (PLD 1963 SC 163, 1984 SCMR 568)
Promulgation of new law: New law having been promulgated long after the announcement of impugned judgment of Supreme Court, change of law in circumstances, could not justify review of the judgment passed on the basis of law prevailing at the time of judgment. (PLD 1997 SC 865 (e))
Review is not granted on the mere ground that one party or another conceives itself to be dissatisfied with the decision of the SC. (1969 SCMR 10,247)
Error on the face of the record Respondent succeeded in getting relief contrary to law as well as provisions of SC Rules, 1980 and the consistent practice prevalent for the hearing of the petition for leave to appeal, being a person fugitive from law, he had not surrendered to the order of imprisonment passed by Accountability Court, therefore he was not entitled to the relief which had been granted to him. Order of the Court though mentioned that respondent had surrendered but record was silent whether he was taken into custody or not. Judgment under review suffered from error on the face of the record. Review granted. (PLD 2005 SC 270 (c))
Accused not having found guilty of the contempt of court by the majority, the portion of the SC Order that “the respondent is discharged in view of the mitigating circumstances of the case though found guilty of contempt of court” did not correctly reflect the opinion of the majority and in consequence needs to be corrected. Court’s order was reviewed accordingly.
(1995 SCMR 159)
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