Isa suffers setback in seats case review

Writes dissenting note to SC committee's majority opinion on govt plea for expeditious hearing

ISLAMABAD:

Two senior most judges of the top court have disagreed with Chief Justice of Pakistan (CJ) Qazi Faez Isa’s opinion that a review petition filed by the ruling PML-N against the Supreme Court’s July 12 order in reserved seats case should be listed for hearing at the earliest.

Since promulgation of the Supreme Court (Practice and Procedure) Act, 2023, a three-member committee of the most senior judges of the Supreme Court decides formation of benches.

The minutes of the 17th meeting of the committee—seen by The Express Tribune—reveal that the panel in its last meeting by majority vote of 2 to 1 held that the government’s review petition against July 12 order will be listed after summer vacations when all 13 judges who had heard the main case are available at principal seat.

Justice Syed Mansoor Ali Shah and Justice Munib Akhtar rejected the request for early listing of the case on two grounds: firstly, a detailed judgement on the matter of reserved seats is yet to be issued and secondly, judges are on summer vacation.

A 13-member full bench of the top court on July 12 resurrected the PTI with a majority vote as it allowed it to get reserved seats in legislatures. The verdict shattered the ruling coalitions’ dream to achieve two-third majority in parliament—a strength needed for constitutional amendments.

The PML-N later filed a review petition against the verdict with a request for its early listing. The request was rejected by the SC committee with a majority vote. Interestingly, the one who wrote a dissenting opinion was CJ Isa who noted that the Constitution and law cannot be disregarded.

“The review petitions and the accompanying applications must be fixed for hearing in court after one week before the judges who had earlier heard the said cases, one week gives sufficient time to enable Justice Ayesha A. Malik (who is abroad) to join the proceedings.”

Commenting on the development, former additional attorney general Tariq Mahmood Khokhar said barely a week ago, the SC’s majority decision on reserved seats had forced the CJ to write a dissenting minority opinion.

“Today, minutes of the 17th meeting of the Committee reveal that the CJ was again outvoted and outmanoeuvred. This time by the senior puisne judge and the next senior judge.

“His attempts for an early hearing of two review cases, believed to be crucial for the proposed constitutional amendments, were thwarted,” he added.

Khokhar stated that Isa’s critics believe that with him, “all roads lead to the established order and its unrepresentative minions, whose values and interests he shares”.

“Clearly, the CJ no longer commands a majority in the Supreme Court. Ad hoc appointments to the Supreme Court are perceived by many to be a crude attempt to redress the balance in his favour.”

He said the question many critics are posing is at what cost this balance is sought in an already factious and fractured institution.

Abdul Moiz Jaferii Advocate said there was no such recognition of a fundamental right of review in the case of the PTI’s petition against the SC’s January 13 order that deprived it of its election symbol.

“The review petition is still pending. If the symbol case review petition had been heard on time, it would have prevented its illegal application by the Election Commission of Pakistan (ECP) to deprive the PTI of its status as a political party which directly hijacked the electoral process.

“The right to vote for a party of their choosing was wrongly stolen from millions of Pakistanis; as CJ Isa himself conceded to in the reserved seats case. A single line clarification in review would have stopped that theft,” said Jaferii.

Some lawyers highlight that since 2019, the SC has not taken up the K-P government appeal against the Peshawar High Court (PHC) judgement declaring existence of internment centres in the provinces unconstitutional.

The PHC order had been suspended by a larger SC bench led by then CJ Asif Saeed Khosa. Interestingly, Justice Isa had himself raised his voice on the non-listing of the case.

Meanwhile, the court is also not in a hurry to decide another appeal filed against the verdict of a Supreme Court larger bench that declared the trial of May 9, 2023 rioters in military courts null and void.

Another larger bench had suspended the apex court’s October 23 order and now there is no urgency to cancel judges’ vacations despite the fact that individuals in military custody are deprived of liberty and dignity after months of confinement already declared illegal by the SC, they said.

Justice Isa’s dissenting note

Justice Isa in his dissenting opinion supported earlier listing of the case, citing the government applications which said, “The order under review has given a strict timeline of 15 days from the date of the order and hence if the order under review is implemented then the instant Review Petition will become infructuous”.

“In the review petitions, CMA [applications] have also been filed seeking the suspension of the order dated 12 July 2024 and state that the balance of convenience lies in favour of the petitioner and if the operation of the order under review is not suspended the petitioner will suffer irreparable loss.

“The order dated 12 July 2024 was by a majority of eight to five, and the detailed reasons of the order of the majority, review whereof has been sought, is awaited.

“If the urgent applications are not granted and the review petitions and the said applications are not fixed in court before the expiry of the stipulated fifteen days the same may become infructuous.

“Article 188 of the Constitution of the Islamic Republic of Pakistan specifically grants to the Supreme Court the power to review its judgments.

“Section 7 of the Supreme Court (Practice and Procedure) Act, 2023 (the Act) stipulates that ‘An application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within fourteen days from the date of its filing’.

“The right provided by the Constitution to file a review petition and to have it urgently heard cannot be made redundant or negated. With great respect, two untenable reasons have been given by my distinguished colleagues for not listing the review petitions for hearing.

“One is that the detailed reason is still awaited, which is a matter within the determination of the judges themselves. It is an established jurisprudential principle that no one’s rights can be adversely affected on account of an act of the court, which in the instant case is the court’s own delay.

“If such a scenario is accepted then it would be equally valid that detailed reasons are purposely delayed and or never provided and thus render the Constitution, which provides for a review petition, and the law, which mandates urgent hearing, utterly meaningless.

“The other reason cited by my distinguished colleagues for not hearing the review petitions is the commencement of summer vacations and that a Judge is abroad, and in this regard reference is made to the Supreme Court Rules, 1980.”

However, CJ Isa said, they have to abide by the Constitution and the law.

“Therefore, the review petitions and the said applications must be fixed as soon as possible. The judges’ oath requires them to abide by the Constitution and the law (not the Rules) and the same prevail over all other personal considerations.”

Regarding the review petition about the interpretation of Article 63 A of the Constitution, CJ Isa stated that the judgment was announced in May 2022. The petition was heard by five Judges and was decided by a majority of 3 is to 2;

Hon’ble Justice Munib Akhtar from the majority and Hon’ble Justice Jamal Khan Mandokhail from the minority remain whereas the then Chief Justice and a Judge have retired and another resigned”

“The petition pertained to the interpretation of Articles 63 and 63A of the Constitution. In view of the constitutional and legal ramifications CRP No. 197/2022 should have been decided; 26 months have elapsed since the decision.

“Therefore, for the same reasons as mentioned above and considering that both the said two judges are available it should be fixed for hearing in the next ten days before a bench to which be added Hon’ble Justice Syed Mansoor Ali Shah, Hon’ble Justice Yahya Afridi and Hon’ble Justice Amin-ud-Din Khan.”