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Thursday, February 15, 2024

Will President’s Curative Review Petition against Justice Faez Isa succeed?

Barister Pansota argues that Curative jurisdiction, as being invoked by the President of Pakistan, is an interesting concept, in a country like Pakistan, where, if adopted, it can effectively put an end to the age-old notion that a matter attains finality after the decision by the Supreme Court under Article 188. Must Read for students of law.

Curative Review Petition? Few have heard this term in Pakistan before, so it is being easily confused with a second review petition. But the President of Pakistan has filed a “Curative Review Petition” under Article 184(3) of the Constitution of Pakistan, 1973 seeking invocation of Suo Moto powers of the Honourable Supreme Court to set aside the Judgment against the order of the majority in the Review Petitions of Justice Qazi Faez Isa and others dated 26-4-2021 [April 26]. The Registrar office has refused to entertain this Curative Review Petition, amongst others, mainly on the ground that Petition seeks review of the earlier Review order which is not maintainable in light of Order XXXVI Rule 9 of the SC Rules, 1980.

Supreme Court returns Govt petition against Justice Isa with objections – Dawn

The filing of the petition and later its rejection by the Registrar raise serious and interesting legal questions.

Curative Petition: Where it is coming from?

Concept of Curative Review Petition was evolved by the Supreme Court of India in the case of “Rupa Ashok Hurra Vs. Ashok Hurra and Anr.”, where the issue raised pertained to “whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of a review petition?”

The language of Order XXVI Rule 9 of the SCR 1980 leaves no room of doubt as regards the maintainability of a “second review petition” but it appears that the Petition has been filed under Article 184(3) and not under Article 188 therefore it may not be termed as a second review. In fact it’s a fresh petition under Article 184(3) seeking correction of a wrong judgment.

Why is AGP Office opposing Law Minister’s suggestion? GVS

The President should have used the word “curative revisit” rather than using the word “curative review”. The petition could otherwise be maintainable as it relates to the independence of the judiciary which is a matter of public importance however Petitioner may face a tough time to prove that there is a violation of a fundamental.

Supreme Court can reopen/revisit any incorrect law?

SC in its judgment reported as PLD 2013 SC 829, later reaffirmed in PLD 2015 SC 50, has held that in its original jurisdiction under Art. 184 (3)/Suo Moto, it could re-open, re-visit any incorrect law laid down by it and the said powers were “not dependant upon an application of a party”.

 

Recently, SC had exercised its Suo Moto jurisdiction by converting a petition filed under Art. 185 (3) of the Constitution into a petition under Art. 184 (3) read with Art. 187 of the Constitution. Reference may made to the case reported as PLD 2020 SC 282 by a Larger Bench and was pleased to allow it.

The doctrine of stare decisis (following binding precedent) would not come in the way of the SC so long as revisiting of the judgment was warranted in view of the significant impact on the Fundamental Rights of citizens or in the interest of public good. Even in the case reported as 2017 SCMR 206 a Larger Bench of the SC was pleased to hold that the doctrine of stare decisis was not applicable to the SC. The SC was not a slave of the doctrine of stare decisis and could change or modify its views with the passage of time.

Conversely, if the Petition is treated as second review petition, then it is a settled law that a Second Review Petition is not maintainable as per Order XXVI Rule 9 of the Supreme Court Rules 1980. In the light of the law laid down by a Seven Member Bench of the SC in the case reported as PLD 2019 SC 749 reaffirmed in 2020 SCMR 497 it has been held that second/subsequent review petition before the SC had no scope of a second or subsequent review petition before the SC after the first Review petition had been decided.

In the same judgment the SC has further held that after exhausting the review jurisdiction of the SC a party to a case could not invoke Art. 184 (3) or Art. 187 (1) of the Constitution for reopening of the same. SC has also held that interpretation of law in a judgment by the SC question whether an interpretation of law in an earlier order or judgment of the SC needed to be revisited or not. Such question was to be decided by the SC upon it’s own initiative and no party to a case or any other interested person could approach the SC for revisiting its earlier orders or judgments.’

The President could have relied upon filing of a Presidential Reference as was filed in the case of Zulfiqar Ali Bhutto to seek “re-visiting” of the judgment reported as PLD 1979 SC 53 i.e. the ZAB case. The said reference was filed after decades and the same has also been entertained and admitted by the SC which has also been filed after the dismissal of the review petition in that case in the year 1979.

Curative jurisdiction is an interesting concept, in a country like Pakistan, where, if adopted, it can effectively put an end to the age old notion that a matter attains finality after the decision by the Supreme Court under Article 188.

Barrister Pansota is an advocate of the Supreme Court of Pakistan practising in Lahore, Islamabad & Karachi. He tweets @pansota1