Curative review: CJ’s role ‘crucial’ in Justice Isa case

The incumbent government’s legal team is divided on the withdrawal of the curative review petition against the top court’s April 26, 2021 order in the Justice Qazi Faez Isa case, with one section wanting to keep the plea pending and wait for the retirement of Justice Maqbool Baqar on April 4.

Legal experts believe that the role of incumbent Chief Justice Umar Ata Bandial will be significant in the curative review petition against the April 26, 2021 order. They are wondering if the chief justice minority’s opinion for referring the case to the Supreme Judicial Council (SJC) would start a new controversy.
Last year, a top functionary of the government in an informal chat had claimed that Justice Isa was facing a tough time within the judiciary, rather than “powerful circles”.

Senior lawyers fear that polarisation within the judiciary will be deepened after the observations made in the minority judgment. They expect that in order to discover the truth, the chief justice will take suo motu notice on the allegations against former chief justice Saqib Nisar for manipulating judicial proceedings in the Panama case. The majority short order had overturned an earlier one issued on June 19, 2020 authored by Justice Bandial.

On April 26, 2021, the apex court’s majority judges had quashed the Federal Board of Revenue’s (FBR) proceedings against the judge and its report on the matter. The majority judgment, issued on January 29, had accepted the review petitions of Justice Isa and his wife with a majority decision of 6:4 against the June 19, 2020 order.

Sources told The Express Tribune that Prime Minister Imran Khan had held a meeting with his legal team members last week to discuss the situation after the issuance of the detailed majority judgment in the case. It has been learnt that Attorney General for Pakistan Khalid Jawed Khan and Senator Ali Zafar had advised the premier to withdraw the curative review petition as there was nothing against the government in the detailed judgment. However, Law Minister Dr Farogh Naseem, who was participating in the meeting via video link, opposed the withdrawal of the petition.

He had told the premier that both the AGP and Ali Zafar were unaware about the exact situation, which he would explain to him separately. However, the legal experts say that the controversy will again emerge about Justice Isa after the issuance of the minority judgment. They say that it seems that the law minister was expecting that the minority judgment will severely damage the moral authority of Justice Isa. Therefore, he opposed other legal team members’ suggestion regarding the withdrawal of the curative review petition.

The senior lawyers are predicting that another move will start for ousting Justice Isa in the month of April after the retirement of Justice Baqar. They say that without the support of the judiciary, the government’s efforts aimed at removing Justice Isa before he becomes the new chief justice will be met with failure.
Earlier, the Supreme Court registrar’s office, while returning the curative review, had raised seven objections. The registrar’s office had said there was no provision of filing a curative review petition in the Supreme Court.

The PTI-led federal government had contended that the Supreme Court’s April decision to accept Justice Qazi Faez Isa review petition against its June 19, 2020 verdict has closed the door of judicial accountability and that the order “suffers from actual bias and reasonable perception of bias”. By a majority of 6 to 4, the apex court on April 26 accepted Justice Isa and others’ review petitions against a SC’s June 19, 2020 split order in which the court had directed the FBR to conduct an inquiry into the foreign assets of Justice Isa’s family members.

The bench had also ordered the FBR to submit its report to the Supreme Judicial Council (SJC) -- a constitutional forum that can hold a superior court judge accountable -- which theoretically could revive a presidential reference seeking removal of Justice Isa. However, in the April 26 order, the SC also quashed the FBR’s inquiry report.

Later, the government filed a “curative review” against the judgment on behalf of the federal government, President Dr Arif Alvi, Prime Minister Imran Khan, Minister for Law Dr Farogh Naseem, Adviser to the PM on Accountability Mirza Shahzad Akbar and FBR legal expert Ziaul Mustafa Nasim.
The SC registrar office, however, returned the curative review after raising certain objections.

Now the government t functionaries have filed an appeal in the chamber against the registrar office’s objections, mentioning dozens of grounds to review the court’s April 26 order. Some government functionaries are not happy with the contents of the curative review petition which accused the majority judges of being biased. Harsh language is used in the appeal filed against the registrar office’s objections.

To make their case on bias, the government has referred to a newspaper article which claimed that two SC judges had written a letter to then chief justice of Pakistan Gulzar Ahmed, asking him to make them a part of the larger bench hearing review petitions filed by Justice Isa against the June 19 order.
It said the additional attorney general on May 18 wrote a letter to the then chief justice, asking him if such a letter existed.

He had also requested the then CJP to provide a copy of the letter, if it was ever written. However, neither the existence of such a letter has been denied nor its copy has been provided. “The news report confirms the grounds of bias and reasonable perception of bias taken up by appellants in the petition,” read the government’s appeal in the chamber.

The government had stated that the April 26 order was unconstitutional, unlawful, against fundamental rights of the public at large and oppressive. Therefore, it had added, the order was liable to be revisited, revised and recalled. “The order is against the independence of the judiciary and its accountability,” it had added.

“The impugned order of the majority in review has sufficiently closed the doors of judicial accountability generally and accountability of Justice Isa in respect of the allegations and information which has come on record,” read the review petition returned by the SC registrar’s office.

In its appeal in the chamber, the government had said the standards of judicial accountability were diluted and a shield was provided to the judges of the superior courts to hide behind the doctrine of judicial independence so as to evade judicial accountability.

“The concept of independence of the judiciary does not mean to protect the benefits of individual judges. The majority judgment in the review petition is against Islamic jurisprudence and moral principles of judges code of conduct.” It had said the majority order usurped the role of the SJC in clearing Justice Isa. The government had maintained that Justice Isa and his wife Isa did not come to the court with “clean hands”.

“By failing to answer the three questions posed by the bench to Justice Isa, a clear and sufficient connection of Justice Isa with his wife’s foreign currency bank account from which the payment was made to acquire the London properties has been established.”

The government had denied that scandalous language was used in curative review petition. It had added that such language could be found in many reported judgments.Regarding the SC registrar’s office objections about multifarious prayers in curative review petition, the appeal had read there were nine prayers in Justice Isa’s wife Sarina Isa review petition but the SC institution branch had not raised objections over them.