The curious case of the curative petition

When it comes to interpreting the constitution, invention tends to follow necessity very closely. One of the more notorious doctrines in the history of our constitutional courts is literally named after Mother Necessity.

But, to be more precise, we didn’t ‘invent’ the doctrine of necessity; we imported it. In our family tree, frequently, necessity births importation. And since necessity seems to beckon the government with much urgency, another legal import awaits border-clearance: India’s ‘curative review petition’.

More simply, having already thrown all its weight behind the reference against Justice Isa, the government has decided to import a kitchen sink to add to its arsenal. But were the Supreme Court to allow such a petition – either now or in a future case – it would cast an inescapable shadow on all future cases before the court. So it’s worth carefully considering whether our constitution even allows such a thing.

To illustrate the concept, consider the facts in the Isa case. Justice Isa filed a petition in the Supreme Court, assailing the president’s reference against him. The reference was found to be malicious, and quashed (thus ending the parallel proceedings before the Supreme Judicial Council). But the court also simultaneously initiated fresh proceedings against the judge. Justice Isa asked the Supreme Court to review that decision, and succeeded. This ended the fresh proceedings that the court, itself, had initiated.

And that was (supposed to be) that. The Supreme Court is already the highest court we have, and if it agrees to review its own judgment, that is the rare grant of a final opportunity to revisit the case. There is nothing beyond that. The Supreme Court’s own rules explicitly affirm this in Order XXVI, rule 9.

But, this Wednesday, the federal government asked the Supreme Court to review its review. Which was an odd thing to do. Not because no one’s asked for one before; but because every single time someone has, they’ve been turned down. Just last year, a three-judge bench of the Supreme Court hearing Zaid Shah v the State said that this position was both “settled law” and “authoritatively held”.

So why call with a hand that is dead on the flop? Well, the law ministry’s press release doesn’t say it filed a “second review”; it calls it a “curative review petition”. Which is what the Indian Supreme Court calls that extremely rare instance when it may revisit its own order in review proceedings (already a rarity) which would, otherwise, be final.

The difference between a second review and a curative petition transcends nomenclature: they derive their powers from different parts of the constitution. The Supreme Court reviews its decisions under Article 188. Importantly, this power is subject to laws that parliament may pass, or rules that the Supreme Court may make. Because the Supreme Court’s rules specifically say you can’t file a second review, that’s the end of that. Were parliament to pass a law to the contrary, it would prevail. Alternatively, the Supreme Court could just amend its own rules. But in the absence of either, there are no second reviews.

But those who are feeling lucky enough to map the skeleton of the Indian curative petition to Pakistan’s constitution will turn not to Article 188, but to Article 187(1), which allows the Supreme Court to “issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it”. That “complete justice” bit makes an unbounded Article 187(1) a very rogue creature.

The Indian counterpart – Article 142 – also allows the Supreme Court to do “complete justice”. Because of our many constitutional similarities (with some portions reproduced verbatim), legal precedent is one of the few things to flow freely across the border. But, in this case, discussions centered on the Indian experience miss the point.

Sure, until the Fifth Amendment to the constitution, the provisions were similar enough for the comparison to make sense. But through the insertion of one phrase, that is no longer so – “Subject to clause (2) of Article 175”.

Article 175(2) provides that “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.” Because a curative petition basically expands the jurisdiction of a court, this phrase is key. The Indian variant is not bound by such language.

Consider the paradox. With Article 188 already overgrazed, the government would ask the court to do “complete justice” by expanding its jurisdiction under Article 187. That, in turn, would be ‘subject to’ Article 175(2), which says a court can’t expand its own jurisdiction; it may only come from “the Constitution or by or under any law”. Since there is no law, we turn to the constitution. And now we’re back at Article 187. Which shoves us back towards Article 175(2). And so on.

When courts interpret the constitution, the general presumption is that those who drafted it didn’t intend on initiating an infinite loop. Fortunately, guesswork can be replaced by the actual words of those who drafted the amendment. This takes us back to 1976. It’s the 3rd of September, and Bhutto’s law minister, Malik Mohammad Akhtar, is presenting the bill that will go on to become the Fifth Amendment.

Asks the law minister: “Now what is meant by complete justice? I could only say that it was a mistake and now under clause (2) of Article 175, the jurisdiction of the courts is very much defined...So thus the word complete justice is vague. We have made Article 187 subject to clause (2) of Article 175 and or any other law which may be there to control the unlimited jurisdiction or to make it in accordance with the provisions of the constitution.”

Clearly, parliament found the Indian provision to be lacking – hence, the addition. The legislature, in passing the Fifth Amendment, specifically sought to preempt the court using “complete justice” to widen its own jurisdiction – such as through a curative review. None of this happened across the border.

In any case, there are reasons to question the reasoning in Rupa Ashok Hurra – the case that first spawned the curative petition. Even under the Indian provision, a court may only do “complete justice” in relation to a “case or matter before it”. It is at least worth discussing whether, after the first review has been decided, the “case or matter” is still “before” the Supreme Court. The court, in Rupa Ashok, did not consider this question.

Furthermore, while recognising that the court would have to “set limits for itself” within which to exercise this power, the court also didn’t use the railing provided by ejusdem generis – latin for ‘of the same kind’. Say you have a law on vehicles. The law provides some examples: bicycles, cars, lorries and so on. Ejusdem Generis would lead to the inference that it wouldn’t apply to a plane, as all the given examples apply to land-based transportation. “Complete justice” may seem a great power, but the examples given in the latter half of the Indian and Pakistani provisions are fairly prosaic: orders to help secure attendance or the production of a document. Ejusdem Generis invites us to at least ask whether something as significant as expansion of jurisdiction is within the same ballpark.

Just as with the introduction of a non-native plant or animal into a new habitat, it’s easy to lose sight of the import of our imports. The overuse of the suo motu by an already overworked judiciary is already a burden that Pakistan has to bear – and, in theory, there’s no reason why “complete justice” should limit the court to just one round of curative petitions.

There’s also no time limit when it comes to curative petitions. Which means that, no matter how narrow the grounds, another round could apply to the villains and heroes to each one of our stories – from the disqualified Nawaz to the exonerated Imran. So, if legal arguments don’t matter much to you, then a good question to ask is this: in cooking today’s meat, are we sure we aren’t preparing tomorrow’s poison?

Email: salaar.khan@columbia.edu

Twitter: @brainmasalaar

The writer is a lawyer.