Chief Justice of Pakistan Qazi Faez Isa expressed strong opposition to a majority decision not to list for urgent hearing a review petition filed by the Pakistan Muslim League-Nawaz (PML-N) against the decision of the 13-member full bench of the Supreme Court in the reserved seats case.
The review petition was rejected after the three-member committee of judges in the Supreme Court responsible for fixing cases decided that the case could not be fixed for a hearing until a detailed judgment in the case was issued. With the detailed judgement pending, the relevant state institutions, including the Election Commission of Pakistan (ECP) are compelled to follow through on the short order issued by the full bench and register independent lawmakers as members of the Pakistan Tehreek-e-Insaf (PTI) in the provincial and national assemblies who had submitted their nomination papers along with party tickets.
Minutes from the 17th meeting of the three-member case-fixing committee under the Supreme Court Practice and Procedure Act, where the review petition was rejected, surfaced on Saturday. They revealed that Justice Muneeb Akhtar defended the vacations taken by judges, citing relevant rules while expressing the conviction that PML-N's review petition could not be fixed for urgent hearings.
The minutes further revealed that two members of the committee, including Justice Mansoor Ali Shah and Justice Akhtar, were clear on the point that the review petitions would be fixed for hearing before the 13-member bench once the other judges making the full court are available.
During the meeting, the secretary pointed out that two urgency applications had been filed with these review petitions wherein the petitioners had pleaded that the order under review had set a fixed a timeline of 15 days and if such order was implemented, the petitions could become infructuous.
The minutes stated that Justice Shah and Justice Akhtar commented that under Order XXVI of Rule 8 of the Supreme Court Rules 1980, the review petitions can only be fixed before the bench (original 13-member bench) that had heard the matter originally. The two members continued that since the court is currently passing through summer vacations and most of the judges are on holiday or out of the country, therefore, it would be appropriate if the matter is fixed for hearing after the summer vacation ends and when all the 13 judges, who originally heard the appeals, were available at the principal seat (Islamabad).
Additionally, it was also pointed out that the review petitions are not fixed until a detailed judgment in the case is released by the bench.
In this case, a detailed judgment is still awaited.
Chief Justice Isa, who heads the committee, urged his two colleagues that the right of review is provided under the Constitution and that such a right had to be preferred over the judges' convenience (who were availing leave/vacation).
"Also, as the Judges had taken an oath to abide by the Constitution, it would be unjust and unfair if the review petitions were not fixed urgently," Chief Justice Isa said.
He stressed that the order under review necessitated the reopening of the court, even if it required the cancellation of vacations.
In response, Justice Akhtar 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 following," said Justice Akhtar.
"Rule 4 provides that summer vacation of the court shall commence on the June 15 or on such date as may be fixed in each year by the chief justice and notified in the gazette," he added.
It is pointed out that the chief justice, through a notification on June 4, 2024, had extended the date of commencement of summer vacations to July 15, 2024, however, there is no provision in the said order for the cancellation of the summer vacations once they 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 HCJP."
Subsequently, the committee, by a majority of two to one, decided to fix this matter after the summer vacations when all the 13 judges, who heard the original appeals, are available at the principal seat.
CJP Isa's note
Chief Justice Isa in his note stated 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 (the Act) stipulates that 'An application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing'."
The note further added 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," said the chief justice.
"One is that 'the detailed reason is still awaited', which is a matter within the determination of the judges themselves. 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," Chief Justice observed.
"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 other reason cited by my distinguished 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 ('the Rules)."
"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," he noted.
"The Judges' oath requires to abide by the Constitution and the law (not the Rules), and the same prevails over all other personal considerations," CJP Isa reminded.
"The Constitution and the law cannot be disregarded. 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."