ISLAMABAD: The Supreme Court’s registrar office on Wednesday returned petitions filed by the government to challenge the apex court’s judgement on review petitions in Justice Qazi Faez Isa case.

Invoking an unheard-of legal remedy, the federal government had instituted the set of petitions on Tuesday.

Filed under the term “curative review petition”, the government petitions were returned on the grounds that a second review petition could not be filed to challenge a decision that had come on a review petition.

Ministry intends to file ‘curative review petitions’ again after addressing objections

The fresh petitions were moved on behalf of the federation but Attorney General of Pakistan Khalid Jawed Khan, who usually represents the federal government in the apex court, distanced himself from the pleas saying he was not in the picture.

Justice Isa is a respondent in the petitions.

The development was confirmed when a spokesperson for the Ministry of Law said that after addressing the registrar office’s objections, the petitions would be filed again in due course of time.

Under the Supreme Court Rules 1980, the federal government can challenge the registrar office’s decision within 30 days.

The announcement by the law ministry said against the April 26, 2021 majority order of the apex court on the review petitions of Justice Isa and others, the federation of Pakistan on May 25 preferred a curative review petition on which certain objections were raised by the office of the Supreme Court.

The petitions had sought a review of the judgement by 17 judges of the Supreme Court – the full strength of the apex court – since the matter allegedly concerned the misconduct of the judge.

Earlier, review petitions in the Justice Isa case were heard and decided by a 10-judge full court of the Supreme Court.

Though copies of the fresh petitions were not available since they had been taken back, a source privy to the development said the federal government had pleaded in the petitions that since the point of view of the Federal Board of Revenue (FBR) on the three properties owned by the family of Justice Isa in the United Kingdom was not considered during the hearings of the review petitions, therefore the court should hear the matter afresh.

When contacted, senior lawyer Muneer A. Malik, who had represented Justice Isa in the first round of litigation, said: “There is no basis in law for a second review petition.”

Likewise, former president of the Supreme Court Bar Association Hamid Khan said he had heard that the government petitions were filed under Article 184 (3) of the Constitution – the original jurisdiction of the Supreme Court for enforcement of fundamental rights – when the review petitions were filed under Article 188.

However, in his opinion, both provisions are not maintainable in the present scenario besides this is not time for filing the government petitions as detailed reasons of the judgement on the review petitions has not come. “Why are they (government) in such a hurry that they cannot wait for the detailed reasons,” wondered Mr Khan.

Senior counsel Salman Akram Raja said the Supreme Court had stated in the past it could review a judgement under Article 187 of the Constitution read with Article 184(3). “But by withdrawing the petitions, the government is giving the impression that there is some issue with the filing of the petitions,” he said.

“It’s not that a second review petition of an apex court judgment is not allowed but to challenge the objection that a second review is not maintainable the government needs to file an appeal and the judge assigned to hear the chamber appeal may decide that the review petition be placed before the court,” Mr Raja said.

A senior lawyer said it seemed as if the federal government was seeking reasons of the April 26 verdict but if the detailed reasons of the judgement came within a short period of time without any serious implications and nothing damaging for the government then the present review petitions would automatically die down.

When asked what a curative review petition was, he said the concept was new in Pakistan. He cited a 2002 judgement of the Indian Supreme Court where in the case of Rupa Ashok Hurra, the top court had evolved the concept of curative petition. Then the question in the case was whether an aggrieved person is entitled to any relief against the final judgement after the dismissal of the review petition.

Similarly, in Pakistan, he said, former chief justice Saqib Nisar had ruled in the judges’ pension case that if a judgement of the court was per incuriam or given without due regard of the law then the Supreme Court could correct the same through another review petition.

“This is an interesting situation,” commented a senior government lawyer saying the purpose of the government seemed to correct what it considered an error in the April 26 judgement.

On April 26, the Supreme Court by a majority of six to four had overturned its June 19, 2020 majority order that required verification of three foreign properties in the name of the wife and children of Justice Qazi Isa and subsequent findings by the tax authorities.

Consequently, the entire exercise conducted by the FBR was rendered null and void since the fresh order that came on a set of review petitions recalled and set aside the June 19, 2020 verdict that though quashed the presidential reference against Justice Isa, had authorised the FBR to evaluate and later impose tax liability against Mrs Sarina Isa for possessing three properties in UK.

The short order clarified that all subsequent proceedings, actions, orders, information and reports in pursuance of the directives issued through the June 19, 2020 order and the detailed reasons of that short order were illegal and without any legal effect.

The order also made it clear that no forum, including the Supreme Judicial Council, would consider or peruse any report or order, hold proceedings or take actions in this regard.

As a result of the short order, the paragraph from four to 11 in the June 19, 2020 short order and the subsequent detailed judgement of Oct 23, 2020 were recalled. These paragraphs were challenged by the petitioners through the review petitions by dubbing the same as superfluous, contradictory, excessive and unlawful and thus liable to be deleted from the short order.

Published in Dawn, May 27th, 2021