Four cases where SC overturned its original decisions

ISLAMABAD: While by and large there is little room and scope of a judgment being overturned in a review petition, the Supreme Court of Pakistan has annulled original decisions in at least four cases in recent years while disposing of such pleas.

The same judges who hand down the actual ruling deal with the review plea against their original judgment. Also, the same lawyers argue on such petitions.

However, there are instances when larger benches heard review requests and reversed the previous verdicts, finding apparent errors on the face of record and miscarriage of justice.

When contacted by The News, former President of the Supreme Court Bar Association (SCBA) Kamran Murtaza said there was no legal bar in setting up larger benches to hear review petitions. There are precedents, set by the apex court, when larger panels held proceedings on review pleas, he said.

He said the same judges hear the review petitions unless any one or more judges of the earlier panel retire by the time such pleas are taken up. He explained that even in the case of a larger bench, the judges, who have given the original ruling, would be included in it with addition of one or more justices.

Kamran Murtaza said the Sharif family can submit an application to Chief Justice Mian Saqib Nisar for constitution of a larger bench. He said that the chief justice has the powers to form panels of judges as all the administrative matters of the Supreme Court fall in his domain.

The ousted premier is seeking the review of the July 28 judgment of the five-member bench in the Panama case in which he was disqualified to be a member of the National Assembly/premier on a weak ground. However, it is so far unclear whether the Sharif family will request the top judge to constitute a larger bench to hear their plea.

In one instance on September 8, 2015, the Supreme Court suspended the law practice licence of Ali Zafar, former president of the Supreme Court Bar Association (SCBA), for a year for professional misconduct and unbecoming conduct.

A three-member bench headed by Justice Jawwad S Khawaja had taken the action after Ali Zafar, representing a real estate mogul, had written a four-page letter to the then Chief Justice Nasirul Mulk for transferring his client’s case to another panel.

“Ali Zafar is guilty of grave professional misconduct and obdurately persisted in the mistaken belief that he did nothing wrong. Ordinarily under the given circumstances an advocate can be barred from practicing before this court forever, however, as this is his first transgression, therefore as a matter of grace we suspend his licence as advocate of the Supreme Court rather than removing his name from our roll of lawyers,” the judgment said.

Ali Zafar had contended that one of his associates Raja Zafar Khaliq had written the letter in question and at the time he was out of Pakistan. However, he had admitted that his associate wrote the letter on his official letter-head.

Asma Jehangir, representing Ali Zafar, had filed a review petition against this decision. The new bench, however, asked her that Ali Zafar should file an application before it. At this Ali Zafar appeared before the panel and submitted that the judgment under review was primarily on the grounds that he had committed misconduct by writing a letter that he denied doing so.

Thus, a month later in the same year, the new bench restored Ali Zafar’s licence after accepting his verbal apology for professional misconduct committed by his associate. By that time, Chief Justice Khawaja had retired after holding the top office for 24 days. The new bench was headed by Chief Justice Anwar Zaheer Jamali and comprised Justice Mian Saqib Nisar, Justice Ameer Hani Muslim, Justice Dost Muhammad Khan and Justice Qazi Faiz Isa.

The second case emerged when in August 2015, the apex court upheld a petition seeking a ban on the issuance of permits and licences for the hunting of houbara bustard and ordered the cancellation of all existing permits in this regard. The three-member bench was headed by Chief Justice Khawaja and comprised Justice Dost Muhammad Khan and Justice Qazi Faez Isa.

However, on Jan 22, 2016, a five-member bench led by Justice Saqib Nisar in a 4-1 majority decision lifted the ban on the hunting of houbara bustard 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 is to interpret the laws and not to legislate.

"Examination of the laws clearly shows that permanent ban on hunting of houbara bustard is not envisaged. Hunting of protected animals is prohibited whereas licence is required to hunt game animals. Provincial governments exercise the discretionary power to classify animals as ‘protected’ or ‘game’ species.”

Way back 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 was led by Justice Tassaduq Hussain Jillani and had consisted of 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 said.

The bench 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 in 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. The fourth case in which the Supreme Court had reversed its decision in the review related to the emoluments paid to retired judges. A three-member bench headed by the Justice Nawaz Abbasi had ruled that the justices who superannuated after a certain small period of services after their confirmation as judges were entitled to retirement benefits. Millions of rupees were instantly reimbursed to them.

However, a five-member bench reversed this decision while reviewing the previous judgment. However, a seven-member panel subsequently ruled that since the payments have been made to the retired justices, this should be considered a one-time facility. A review petition against this decision is still pending disposal in the Supreme Court.