Legality of curative review petition
Grasping at straws in Mr Justice Faez Isa’s case
The Government’s second “review petition”, labelled a “curative review petition” in the Justice Qazi Faez Isa case has been returned. The Office of Registrar, Supreme Court, found the petition to be suffering from deficiencies and containing scandalous language, and hence unmaintainable. The Spokesperson of the Law Ministry however reiterates the Government resolve to pursue the matter by challenging the rejection order. Under the Supreme Court Rules, an aggrieved party may file appeal against such order before a “Judge in Chambers”.
The contents of the petition are not disclosed, hence the grounds or reasons quoted therein for quashing the Court’s short order in the review petition, are not known and cannot be legally scrutinized. The measure however is uncommon and unprecedented. It is also improper and irregular, precisely the way and manner the Reference was filed. The FBR under the law, could seek information of the money trail for funds transfer from the spouse (an independent tax filer). however, the Government, instead filed Reference against the Judge, levelling allegations of financial impropriety.
The handling of the matter by the Supreme Judicial Council was equally uncommon. It picked up the complaint out of turn and initiated enquiry. Coming in the aftermath of a most controversial verdict in Mr Justice Shaukat Siddiqui’s case, involving the role of establishment, quite naturally, eyebrows were raised when a “show cause notice” was issued to Mr Justice Isa. Mr Justice Isa therefore rushed to knock at the door of Supreme Court to seek justice; so proceedings ensued under Article 184(3) of the Constitution. After a lengthy trial, the Court quashed the Reference, it being found to be illegal. The Court however directed the FBR to initiate proceedings against the spouse and offspring of the judge and submit a report before the Supreme Judicial Council. The Council was asked to proceed suo motu against the judge, if so desired in the light of the report.
In review, however, the Court realized its blunder of having gone beyond the permissible parameters and therefore set aside its impugned order. This concluded the legal and judicial process and the matter should have rested there. Not yet, so far as the worthy President, PM, Law Ministry and other authorities are concerned. Perhaps, they are still reeling from the shock of indictment against the Government and the establishment in the landmark judgment in the Faizabad Dharna case. Whatever the motivations or compulsions, the move to file second review, labelled as “curative review petition”, is palpably illegal and unwarranted. The matter is settled and should rest.
The phrase “curative review petition” is a new and novel concept in modern jurisprudence. It was evolved first by the Indian Supreme Court, some two decades ago. The issue was as to “whether an aggrieved person is entitled to relief against the final verdict of the Supreme Court, when his review petition is dismissed”? And in keeping with the peculiar facts of the case and its treatment through judicial processes, support was found in the Indian Constitution. The relevant provisions were Articles 32 (power to issue prerogative writs for enforcement of Fundamental Rights), 136 (special leave to appeal from verdict of any court/tribunal), 137 (review jurisdiction) and 142 (doing complete justice in a pending cause/matter).
The Court answer was therefore in the affirmative. The Court held that a final verdict can be reopened and evidence/material reevaluated, provided that there is any apprehension of denial of the principle of natural justice, resulting in the miscarriage of justice. A special procedure was prescribed for such review including referring the petition to a bench of the three most senior judges of the Court together with the judges who decided the review petition. For maintaining the petition, approval of majority of judges is required. hearing is conducted in chambers; however in exceptional cases, open proceedings may be held. The Court may engage senior counsel as amicus curiae. Again, heavy cost is imposed for false or fictitious grounds or the case lacking merit. Needless to say, strong evidence is required to prove injustice in the Court’s verdict.
Ordinarily, the Supreme Court of Pakistan is quick to follow foreign precedents, particularly the ones formulated by the Indian Supreme Court. examples are the enlargement of jurisdiction under Article 184(3) in taking up, suo motu, cases involving Public Interest Litigation. This was followed by adopting the theory of basic structure. On the issue of curative review petition too, the Court followed the Indian precedent. In a few judgments, it found authorization for it in the Constitution of Pakistan. Reliance is placed on Article 184(3) (original jurisdiction for enforcement of Fundamental Rights), read with Articles 187 (doing complete justice in a pending case/matter) and 188 (review jurisdiction). This may be so, because of similarity in constitutional provisions, due to borrowing from India.
however, there are important distinctions/differences also, which are hard to overlook! For instance, unlike in India, Article 187 of the Constitution begins with a rider, “Subject to clause(2) of Article 175”. This clause restricts the Court jurisdiction to be conferred only by the Constitution or the law. It therefore ousts any jurisdiction conceived or imagined by the Court through importation of foreign law/precedent. The Court is the creation of the Constitution and must function under it. And whereas it can interpret the Constitution, it cannot ignore or override or sidestep a clear provision, which bars its powers or jurisdiction. Again, under the Constitution, just one review is permissible under Article 188, and a second review is specifically barred under Rule 9, Order XXVI of the Supreme Court Rules 1980. So there is no scope for entertaining a second review, labelled a curative review petition. Besides, the Court is already under a deluge of huge pendency and cannot afford to avail the luxury of indulging in unending bouts of litigation. To do so, is not just against the Constitution, law and rules, but also detrimental to public interest and policy.