Review by same bench is good-for-nothing

ISLAMABAD: The five judges’ decision on the review petitions of deposed Prime Minister Nawaz Sharif and others cries out for deletion of this “facility” altogether or its drastic amendment to provide for hearing of such pleas by benches larger than those which hand down the original decisions.

There is no instance to quote when the same bench had overturned its first decision in review. However, there are at least four examples when larger benches reversed the judgments of other panels of justices.

However, universal consensus is that there is always little or no prospect in getting relief by the aggrieved party in a review petition. What is then the point in having this recourse? Aren’t the proceedings on review petitions a waste of time and the public and private money considering their outcome in all cases save a few rare exceptions? The obvious answer is in the affirmative.

To expect and hope by the challengers or anybody else that the same judges who had delivered a ruling would themselves change it fundamentally or partially within just one month, the period allowed to file review, is simply a naive approach and conclusion.

Those seeking review have to shell out a considerable sum of money in the form of lawyers’ fees. Besides, the precious time of the court, which has a huge backlog of cases pending for disposal since long, is also used up on an exercise that turns out to be futile at the end of the day.

However, the proceedings on review pleas may become productive if they are heard by benches larger than those who have given the first verdicts with the exclusion of the earlier justices. Thus, new legal brains will be able to look at the judgment in question with a fresh mind.

Similarly, the essential condition that the same lawyers should also appear to argue in the review petition also doesn’t sound plausible although the court has powers to do away with this stipulation. This deprives the aggrieved party from hiring new advocates if, supposing, it is dissatisfied with the performance of its previous legal team.

As per the Supreme Court Rules, as far as practicable the review application shall be posted before the same bench that delivered the original judgment or order in question. After the final disposal of the first application for review no such application shall subsequently lie to the court and consequently shall not be entertained by it.

The word “practicable”, occurring here, gives room to the chief justice to refer the review plea to another bench, a larger one. This was apparently applied in the houbara bustard case when a review application was heard by a five-member bench which included only one judge of the earlier three-justice panel that had originally decided the case. The new larger set of judges had totally reversed the verdict in a 4-1 majority judgment.

A credible option is to abolish the law or rule providing for the review petitions. In its present shape, it is inconsequential and unwanted. The review is a kind of reconsideration that may be useful only if it is heard by a larger, different bench to become a worthwhile exercise. Obviously, the litigants will be content if their pleas are put before other benches, and only then any gross errors floating on the surface of the record can be removed. Anybody how prudent and wise and how high he may be can commit mistakes, because he too is a human who can err, which can be rectified by others who will look into them in a dispassionate manner.  Some lawyers have been opposing the Supreme Court’s original jurisdiction under Article 184(3) on the convincing ground that it robs the affected parties of the right to appeal. They have been asserting that an appellate forum should be provided to call into question the judgments under this provision because in these cases the apex court works as the first court.

The present decision on the review petitions did not come as a surprise for many and was widely anticipated. It was a fait accompli as the relevant rule was strictly followed and implemented.

There is always a limited scope of the review petition to succeed. However, Article 188 of the Constitution says the Supreme Court shall have power, subject to the provisions of any Act of Parliament and of any rules made by the apex court, to review any judgment pronounced or any order made by it.  Apart from the rules, the practice of the top court is also relevant in review petitions.

According to the Supreme Court Rules, when the review plea proceeds on the ground of a discovery of fresh evidence, certified copies of the documents, if any, relied upon, shall be annexed to the application together with an affidavit setting forth the circumstances under which such discovery has been made. The advocate signing the application shall specify in brief the points upon which the prayer for review is based and shall add a certificate to the effect that consistently with the law and practice of the Supreme Court, a review would be justifiable in the case.

In case the court comes to the conclusion that the reviewapplication filed was vexatious or frivolous, the lawyer or the advocate-on-record, drawing the application shall render himself liable to disciplinary action. Except with the special leave of the court, no application for review shall be entertained unless it is drawn by the advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Nor shall any other lawyer, except such advocate, be heard in support of the application for review, unless the court has dispensed with this requirement.