LHC female judge case: SC reserves judgment on Erum Sajjad review petition

ISLAMABAD: What would be the fate of a former LHC additional judge’s petition challenging former chief justice of Pakistan (CJP) Justice Mian Saqib Nisar’s decision of dismissing her plea seeking confirmation of her service?

Although, there is a fat chance of overturning the verdict in the review petition, there are instances where the Supreme Court annulled original decisions like the Houbara Bustard case, suo motu case against alleged corruption in the Pakistan Kidney and Liver Institute (PKLI) as well as Supreme Court verdict of 2009, declaring former prime minister Nawaz Sharif and Shahbaz Sharif eligible to contest elections.

A three-member bench of the apex court, headed by Justice Mushir Alam, the other day reserved Justice (R) Nasira Javed Iqbal’s review petition for non-confirmation of former Lahore High Court Additional Judge Justice Eram Sajjad Gul service along with two other constitutional petitions filed by Abdul Sattar and Habib Ullah Aamir, former additional judges of LHC, who were also not confirmed by the Judicial Commission of Pakistan.

In spite of the Parliamentary Committee’s recommendation that non-confirmation of these two judges may also be reconsidered, no decision was taken. They were represented by senior advocate Hamid Khan.

Last year on April 26, a three-member bench of the Supreme Court, headed by former CJP Mian Saqib Nisar, dismissed a constitutional petition, challenging the order of Judicial Commission of Pakistan by non-confirming the service of Justice Eram Sajjad Gul of Lahore High Court (LHC).

The other members of the bench were Justice Umer Ata Bandyal and Justice Sajjad Ali Shah. Justice (R) Nasira Javed Iqbal had challenged the May 5, 2017 order in the Supreme Court passed by the Judicial Commission of Pakistan by non-confirming the service of Justice Eram Sajjad Gul. During the hearing of review petition, Shah Khawar, counsel for Justice (R) Nasira Javed Iqbal, submitted to the court that the bench, headed by former Chief Justice Mian Saqib Nisar, had dismissed the constitutional petition with a non-speaking order without adverting to his contentions.

In his contentions, Shah Khawar had raised important questions of law about the role of the Judicial Commission of Pakistan and Parliamentary Committee on Appointment of Judges. He however, contended that the instant constitutional petition was dismissed in haste.

The petitioner, Justice (R) Nasira Javed Iqbal, informed the bench that the Registrar Office of the apex court had returned her petition against non-confirmation of Justice Eram Sajjad Gul’s service.

Later on, she filed an appeal against the order of registrar which was heard by former Chief Justice Mian Saqib Nisar in his chamber. The former CJP in presence of her lawyer observed that an injustice had been made to the constitutional petition and consequently overturned the order of the registrar and ordered fixing of the instant matter before a bench of the apex court. Meanwhile, she contended that her petition was heard by Justice Mian Saqib Nisar himself and without hearing her counsel, threw away the file during the hearing.

Justice Nasira maintained that as a matter of propriety, the former CJP should not have heard the case as he was heading the Judicial Commission of Pakistan (JCP) against whose decision she had filed a petition.

She contended that a discriminatory treatment had been meted out to a lady judge and the Parliamentary Committee on the Appointment of Judges of Superior Courts had referred the matter back to the Judicial Commission of Pakistan (JCP) for reconsideration of its decision but no action whatsoever was taken by the JCP. After hearing the arguments of Hamid khan, Shah Khawar and Justice Nasira Javed Iqbal, the court had reserved the judgment. Though, there is a little room and scope of overturning a verdict in the review petition there are instances where the Supreme Court annulled the original decisions while disposing of such pleas.

In a most recent case, a three-member bench of the Supreme Court bench reversed all previous orders passed by former chief justice Mian Saqib Nisar in a suo motu case against alleged corruption in the Pakistan Kidney and Liver Institute (PKLI) and huge salaries of its president and other staff.

The bench, headed by Justice Manzoor Ahmed Malik and comprising Justice Syed Mansoor Ali Shah and Justice Yahya Afridi at the Lahore Registry disposed of the case after reversing all the orders passed by former chief justice Mian Saqib Nisar.

After revoking the previous orders, the court directed the provincial government to run the PKLI under its Act and also allowed Dr Akhtar to go abroad.

The bench also discarded the ad hoc committee which was appointed by ex-CJP Saqib Nisar, headed by a retired judge, to run the institute on behalf of the apex court and ordered amendment to the Pakistan Kidney & Liver Institute and Research Centre Act 2014.

In view of the Supreme Court’s decision, reversing all the orders of ex-CJP Saqib Nisar in (PKLI) matter, it is yet to see as to what will be the fate of the judgment of the apex court under review regarding non-confirmation of services of justices Eram Sajjad Gul, Abdul Sattar and Habibullah Aamir which was reserved by the apex court the other day.

Similarly, in another case that emerged in August 2005 a three-member bench of the apex court, headed by former Chief Justice of Pakistan Justice Jawad S Khawaja and comprising Justice Dost Muhammad Khan and Justice Qazi Faiz Isa, upheld a petition seeking ban on issuance of permits and licences for hunting Houbara Bustard and ordered the cancellation of all existing permits in this regard.

However, on Jan 22, 2016, a five-member bench led by Justice Saqib Nisar by 4-1 majority decision lifted the ban in the review petitions filed by the federal and provincial governments. Justice Qazi Faez Isa had written a dissenting note. The panel held that there was apparent error on the face of record and set aside the original judgment. In its 16-page decision, the court said the role of the judiciary was to interpret laws and not to legislate.

Likewise, in May 2009, the Supreme Court declared former prime minister Nawaz Sharif and Shahbaz Sharif eligible to contest elections and hold public office in their review petitions, quashing its earlier decision and also that of the Lahore High Court (LHC), which had disqualified them. The bench, led by Justice Tassaduq Hussain Jillani, comprised Justice Nasirul Mulk, Justice Mohammad Musa K Leghari, Justice Sheikh Hakim Ali and Justice Ghulam Rabbani.

“The LHC judgment of June 23, 2008 and the Supreme Court decision of Feb 25, 2009 in civil petitions are set aside and the orders of the returning officer accepting nomination papers of Nawaz Sharif on May 15, 2008 and Shahbaz Sharif on May 16, 2008 and the order of the chief election commissioner (CEC) on June 1, 2008 are restored,” the verdict declared.

The court ruled that the judgments under review were ex-party on account of which certain factual aspects and legal provisions having bearing on the issues raised were not brought to the notice of the court and, therefore, were not considered, leading to miscarriage of justice, “which has been found by us to be errors apparent on the face warranting review”. “One of the onerous functions of the Supreme Court is to protect the Constitution and to sustain democracy, which was not merely about holding periodical elections or governance by legislative majority,” the judgment said.

On June 23, 2008, the LHC had declared Nawaz Sharif, a convict in the plane hijacking case, disqualified from contesting elections.

A petition had been filed with the election tribunal against the acceptance of Shahbaz Sharif’s nomination papers, and on its divided decision, the CEC had allowed them to contest election, but the LHC, on a petition against the tribunal’s decision, declared him disqualified in a default case.

In view of the past cases wherein the court had annulled its decision in review petitions, it is yet to be seen as to what will be the judgment of the apex court in the case of Eram Sajjad Gul, which was reserved by the apex court the other day.