SC verdict on reserved seats: Not fixing review pleas urgently to be unjust: CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa Saturday said that it would be unjust and unfair if the review petitions against the Supreme Court judgement on the reserved seats in the National and provincial assemblies are not fixed for hearing now.

However, Justice Syed Mansoor Ali Shah and Justice Munib Akhtar opposed the fixing of review petition against the judgement delivered on July 12 with the ruling that it cannot be fixed until detailed judgement is released by the 13-member bench.

Both the senior judges of the apex court opposed the idea during the 17th meeting of the committee constituted under Section 2 of the Supreme Court (Practice and Procedure) Act 2023 held on July 18.

Justice Munib Akhtar, member of the committee on vacation, joined the meeting through video link.

The committee by majority decided to fix this matter after the summer vacations when all the 13 judges, who heard the appeals, are available.

During the meeting, the committee secretary pointed out that two urgent applications had been filed with these review petitions where the petitioners had pleaded that the order under review had fixed a timeline of 15 days and if such order was implemented the petitions would become infructuous.

Justice Mansoor and Justice Munib commented that under Order XXVI, Rule 8 of the Supreme Court Rules 1980, the review petitions can only be fixed before the bench that heard the matter originally and as the court is passing through summer vacations and most of the judges are on holidays or out of the country, therefore, it would be appropriate if the matter is fixed after the summer vacations when all the 13 judges who heard the appeals are available at the Principal Seat.

“Additionally, it was also pointed out that the review petitions are not fixed until detailed judgement is released by the bench and in this case the detailed judgement is still awaited,” say the minutes of the meeting.

Chief Justice of Pakistan (CJP) Qazi Faez Isa, however, urged that the right of review had been provided under the Constitution and such right had to be preferred over the judges’ convenience (who were availing leave/vacation).

“Also, as the judges had taken oath to abide by the Constitution, it would be unjust and unfair if the review petitions were not fixed urgently,” the CJP told the committee, stressing that the order under review necessitated reopening of the court even if it required cancellation of vacations.

In response, Justice Munib commented that summer vacations are provided under Order II of the Rules. Rule 3 of the said Order which provides that the judicial year of the Court shall commence on the second Monday in September each year and continue until the commencement of the vacation in the year next following.

Justice Munib said that Rule 4 provides that summer vacation of the Court shall commence on the 15 June or on such date as may be fixed in each year by the chief justice and notified in the Gazette.

The judge pointed out that the chief justice through a notification dated 4 June 2024, extended the date of commencement of summer vacations as July 15 2024, however, there is no provision in the said order for cancellation of the summer vacations once the same have been announced unless the matter is put up before the full court and the rules are amended accordingly.

“Hence, cancellation of vacation cannot be recoursed to by the committee or the chief justice,” the judge further told the committee.

Meanwhile, the committee considered and approved the court rosters during summer vacations from July 29 to September 6.

Meanwhile, CJP Isa said that the minutes of the meeting have been written by his colleagues with whom in respect of agenda items 1 and 3, he cannot agree and have written his separate note.

In his separate note, Justice Isa said that the secretary informed that in Civil Appeal No 333/2024 Civil Review Petition No 312/2024 and Civil Appeal No 334/2024 Civil Review Petition No 313/2024 have been filed. Both the review petitions challenge the short order of the court dated 12 July 2024.

“2. CMA Nos. 7426 and 7427 of 2024 in the said review petitions have been filed ‘under section 7 of the Supreme Court (Practice and Procedure) Act 2023 for urgent fixation of the matter.

The applications state:

4. That the order under review has given 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.”

The chief justice said that in the review petitions CMA Nos 7430 and 7431 of 2024 have also been filed, under Order XXXIII, rule 6 of the Supreme Court Rules 1980 seeking the suspension of the order dated July 12, 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 CJP noted that the July 12 order was by a majority of eight to five, and the detailed reasons of the order of the majority 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,” the CJP said.

Justice Isa noted that Article 188 of the Constitution specifically grants to the Supreme Court the power to review its judgments. Section 7 of the Supreme Court (Practice and Procedure) Act 2023 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 chief justice further noted that 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,” the CJP held.

The chief justice further said that 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 CJP held.

He said that the other reason cited by his 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, we 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 CJP said, adding that the judges’ oath requires to abide by the Constitution and the law (not the rules), and the same prevail over all other personal considerations.

The CJP further said that the Constitution and the law cannot be disregarded, adding 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.