Judgment to quash reference against Justice Isa: CJP allows govt’s plea seeking to withdraw curative review petitions

ISLAMABAD: Chief Justice Umar Ata Bandial allowed the federal government’s plea to withdraw curative review petitions filed against the Supreme Court judgment to quash the Presidential Reference against Justice Qazi Faez Isa and abate the proceeding before the Supreme Judicial Council (SJC).

A 10-member bench of the apex court by a majority of 6-4 on 26-04-2021 allowed the review petitions filed by Justice Isa and others against its decision dated 19.06.2020.

The Pakistan Tehreek-e-Insaf (PTI) government on 25-05-2021 had filed the curative review petitions against the Supreme Court’s judgment dated 26-04-2021. However, the Pakistan Muslim League-Nawaz (PML-N)-led government on March 31, 2023, submitted a plea to withdraw the curative review.

Govt files petition to withdraw curative review petition against Justice Faez Isa

Justice Bandial had heard Attorney General for Pakistan Mansoor Usman Awan’s argument for withdrawal of the curative review and announced its judgment on Friday.

It said that a second review is barred by the law and that the Court alone is empowered, if so inclined, to re-visit, review or set aside any of its previous judgments/orders.

It further said that a study of the Indian law on curative review reveals that it is a remedy altogether distinct from the suo motu exercise of jurisdiction by the Court. “Whereas curative review has no standing in our jurisprudence, and 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/order. However, the key difference, inter alia, between the two jurisdictions lies mainly in their mode and manner of invocation.

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 lack of 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.

The judgment said that in the present case, no member of the Bench that delivered the subject judgment (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.

Consequently, 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.

Justice Bandial wrote in the ordinary course of action would have been to refer the matter to the Court for a conclusive determination on its maintainability. However, the appellants are now seeking the withdrawal of their curative review petitions.

This right of the appellants to withdraw their curative review petitions (and generally of parties to withdraw their cases) is acknowledged by the law [ref: Reviews on behalf of Justice (retired) Abdul Ghani Sheikh (PLD 2013 SC 1024].

Exceptions to the said 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 [ref: Jurists Foundation Vs Federal Government (PLD 2020 SC 1) at para 6]. But that exception is not applicable to the instant case because it is not litigation in the public interest. Rather the present matter emanates from Article 209 of the Constitution which grants the Supreme Judicial Council, and not the Court, the exclusive power to inquire into the misconduct of a superior court judge.

Therefore, the appellants retain the unconditional right to withdraw their curative review petitions filed against the subject judgment.

Copyright Business Recorder, 2023