Seeking nullification of verdict in Faez Isa case: Law ministry wants SC to follow its Indian counterpart

ISLAMABAD: The federal law ministry, seeking the reversal of the Supreme Court decision favouring Justice Qazi Faez Isa’s family, wants the Supreme Court to follow in the footsteps of India’s highest judicial forum.

The ministry, through a curative petition, wishes the apex court to set a new precedent in Pakistan’s judicial history just as the Indian Supreme Court had done 19 years ago. On May 26, the registrar’s office of the Supreme Court had refused to entertain the federal government's review petition on the grounds that a second such plea could not be filed in a case.

The Supreme Court had scrapped the proceedings of the Federal Board of Revenue (FBR) against Justice Qazi Faez Isa’s wife and children relating to their offshore properties. Nothing has been heard so far from the law ministry about another bid to approach the Supreme Court after the return of its second review plea by the registrar. However, under the law, the government has 30 days to submit its petition.

“There is no judicial precedent of a curative petition in Pakistan,” a top legal brain in the government told The News on condition of anonymity. He said Federal Law Minister Dr Farogh Naseem was single-handedly dealing with the matter and Attorney General Khalid Jawed Khan or his office had nothing to do with it.

The review petition submitted earlier had not carried the signatures of Additional Attorneys General Chaudhry Amir Rehman and Sohail Mahmood, who had represented the government in the Justice Isa case.

Despite strong opposition by the attorney general’s office, sources say the law ministry had succeeded in convincing top government functionaries to file the second review petition in the Justice Qazi Faez Isa case although there is no such precedent in Pakistan. The legal mind said that the context of the 2002 Indian judgment in the curative petition was totally different from the present case relating to Justice Isa.

A curative petition means a way to ask the court to review or revise a decision even after a review plea is dismissed. The record shows that the curative petition concept was evolved by the Indian Supreme Court in the matter of Rupa Ashok Hurra vs. Ashok Hurra and another (2002) in which the question was whether an aggrieved person is entitled to any relief against the final judgment or order of the apex court after the dismissal of a review petition.

The Supreme Court held that to prevent the abuse of its process and to cure a gross miscarriage of justice, it may reconsider its judgments in exercise of its inherent powers. For that purpose, the court devised what has been termed as a curative petition in which the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation, which must be certified by a senior advocate. The curative petition is then circulated to the three most senior judges and to the justices who delivered the impugned judgment, if available. No time limit is given for filing the curative petition. It is guaranteed under Article 137 of the Indian Constitution, which gives the power to the Supreme Court to review its own judgments and orders.

The main difference between the review and curative pleas is the fact that a review petition is inherently provided in the Constitution whereas the emergence of the curative petition is in relation with the interpretation of the review petition by the Supreme Court, which is enshrined in Article 137.

The concept of curative petition was evolved by the Supreme Court to prevent the miscarriage of justice and to prevent any abuse of process. A five-judge bench had unanimously held that in order to rectify a gross miscarriage of justice, the court will allow the curative petition filed by the victim. The court had ruled that a curative petition can be allowed if the petitioner establishes that there was a violation of the principles of natural justice, and there were some facts which were brought to the notice of the court but were ignored by it before passing an order. The curative petition is normally decided by judges in-chamber, and in rare and exceptional cases, an open hearing is held.

A curative petition doesn’t happen as a matter of right. The court will allow a curative petition only when certain requirements as laid down by it are fulfilled. The aggrieved parties have the statutory right to appeal. Once a decision is given by the Indian Supreme Court, the same may be considered final and binding. However, in the interest of justice, Article 137 was incorporated into the Indian Constitution, which provided that the apex court, subject to the provisions of any law made by parliament, has the power to review any judgment pronounced or order made by it.

The Rupa Ashok Hurra Vs Ashok Hurra & another (2002) was a case of matrimonial discord where the question of the validity of a decree of divorce reached the apex court after the woman withdrew the consent she had given to divorce by mutual consent. The judgment held that technical difficulties and apprehensions over the reopening of cases had to give way to a final forum for removing errors in a judgment where administration of justice may be affected.

The court ruled that a curative petition can be entertained if the petitioner establishes there was a violation of the principles of natural justice, and that he was not heard by the court before passing an order. It will also be admitted where a judge failed to disclose facts that raise the apprehension of bias. It was further held that curative petitions must be rare rather than regular and be entertained with circumspection.

The court’s conclusion was that as much as one wants to believe, judges aren’t gods. They are human beings and humans are bound to err. While decisions of the lower courts can be reviewed, appealed against or revised under various constitutional provisions, the Supreme Court could not go against its own judgment to make changes. However, considering the fact that errors can be made by a human being, it was important to introduce a concept wherein the apex court can review an order passed by it. This is nothing but just an additional step to meet the ends of justice in totality, it was ruled.