PTI-era review petition against Isa dismissed

Chief Justice of Pakistan Umar Ata Bandial on Friday granted approval for the federal government's request to withdraw the controversial "curative review petition" filed against Justice Qazi Faez Isa, a current Supreme Court judge.

The petition had been lodged by the former PTI government but has now been dismissed.

In the 13-page verdict, the top court stated that the withdrawal plea by the federal government was accepted. While ordinarily, such matters would be referred to a relevant court for conclusive determination on maintainability, the appellants' decision to withdraw the petition was acknowledged as their legal right.

The Chief Justice cited relevant orders, clarifying that exceptions to this rule exist. For instance, public interest litigation filed under Article 184(3) of the Constitution cannot be withdrawn except with the permission of the court.

However, in this particular case, the exception did not apply, as it did not involve litigation in the public interest. Instead, it stemmed from Article 209 of the Constitution, granting the Supreme Judicial Council (SJC) exclusive authority to investigate misconduct allegations against a superior court judge.

Consequently, the appellants retained the unconditional right to withdraw their curative review petitions related to the subject judgment.

The ruling clarified that this result does not hinder the court's ability to exercise suo motu jurisdiction based on cognizable information, irrespective of the proceedings' status or a party's presence. The court can still take action when warranted.

"The instant Civil Misc. Applications filed by the appellants are accordingly allowed and their curative review petitions are dismissed as withdrawn".

The curative review has no standing in our jurisprudence the availability of suo motu review has long been accepted by the court, albeit in the limited circumstances of doing complete justice under Article 184(3) and/or Article 188 read with Article 187 of the Constitution.

It is of course clear that both types of judicial interventions, curative review and suo motu review, possess a similar purpose – i.e. to correct a fundamental error in a previous judgment.

However, the key difference, inter alia, between the two jurisdictions lies mainly in their mode and manner of invocation.

“Order XLVIII, Rule 2 of the Supreme Court Rules, 2013 mandates that curative review must be invoked by a party. On the other hand, Suo Motu review can only be invoked by the court in its discretion, including on the information received from an aggrieved or concerned party.”

Therefore, the verdict explained, the lack of the proceedings being initiated by a party is inconsequential to the court’s exercise of suo motu jurisdiction. That does not appear to be the case for curative review petitions filed in the SCI.

In the present case no honourable member of the bench that delivered the subject judgement – nor any other judge of the court – has so far considered it necessary to re-visit, review or set aside that judgment on the ground that it has had a significant impact on the fundamental rights of citizens; or that it is in the interest of the public good; or that it is per incuriam (through lack of due regard to the law).

Consequently, CJP Bandial said, in the absence of such a judicial view and the lack of an enabling jurisdiction that allows an aggrieved or concerned party to file a second review, the appellants' curative review petitions appear to be not maintainable.

SC's 'stress' on its suo motu jurisdictions

Commenting on the development, a senior lawyer speaking to The Express Tribune said It would have been “better to issue two-line order”, wondering what was the rationale behind the noticeable stress – that appears throughout the order repeatedly – on the top court’s jurisdictions to review the matter in suo motu if it so liked.

However, former additional attorney general Tariq Mahmood Khokhar said the curative review order did not invent a new law, noting that no one can cavil at the decision. “There is, however, sufficient gratuitous content for those waiting to be offended,” he added.

The former PTI government had pleaded before the top court that its April 26, 2021 majority judgement in the Justice Qazi Faez Isa review case should not be left in the field for being “manifestly and patently unjust, against the public interest and public good which defeats the judicial accountability”.

On April 26, 2021, the court, in a majority verdict, overturned its majority ruling of June 19, 2022. It had ordered an investigation by tax authorities into three foreign properties in the name of the wife and children of Justice Isa.

The curative appeal was moved on behalf of President Dr Arif Alvi, the previous federal government through secretary law, former prime minister Imran Khan, former law minister Dr Farogh Naseem, former adviser on accountability Shahzad Akbar, etc.

The appeal had argued that the April 26 judgement had sufficiently closed the doors of judicial accountability in general as well as the accountability of Justice Isa in respect of allegations and information which had come on record.

It also contended that the judgement had also diluted the standards of judicial accountability, rather a shield was provided to the judges of superior courts to hide behind the doctrine of judicial independence only to evade judicial accountability.