ISLAMABAD: A three-judge committee formed under the Supreme Court (Practice and Procedure) Act 2023 has decided that the PML-N’s petition to recall the July 12 short order in the reserved seats case will be addressed after the summer recess to ensure the availability of all 13 judges involved in the original ruling at the principal seat in Islamabad.
However, the minutes of the 17th meeting of the committee, held on July 18, suggested that Chief Justice of Pakistan (CJP) Qazi Faez Isa dissented from the majority opinion held by senior puisne judge Justice Syed Mansoor Ali Shah and Justice Munib Akhtar.
On a separate note, the CJP emphasised that the right to review, as provided by the Constitution, should take precedence over the convenience of judges on leave or vacation.
Justice Isa argued that judges, having sworn to uphold the Constitution, should prioritise urgent hearings of review petitions, even if it necessitated the reopening of the court or the cancelling of vacations.
Conversely, Justice Shah and Justice Akhtar, supporting the majority view, cited Order 26, Rule 8 of the Supreme Court Rules 1980, which mandates that review petitions be presented before the same 13-judge bench that initially heard the case. Given the ongoing summer vacations and the absence of many judges, they recommended scheduling the hearing post-summer recess.
They also pointed out that review petitions could not proceed until the detailed judgement on reserved seats was released, which was still awaited.
Justice Akhtar also contended that summer vacations were provided under Order 2 of Rule 3, which suggested that the judicial year of the court will commence on the second Monday in September each year and continue until the start of vacations the next year.
Likewise, Rule 4 provides that the Supreme Court’s summer vacations will begin on June 15 or on such date as may be fixed each year by the CJP and notified in the gazette.
‘Irreparable loss’
In his dissenting note, CJP Isa referred to the review petition seeking the suspension of the July 12 order with a plea that the balance of convenience lies in favour of the petitioner and if the operation of the order under review was not suspended, the petitioner will suffer irreparable loss.
CJP Isa said that the July 12 verdict was by a majority of eight to five and the detailed reasons of the order of the majority was awaited. If the urgent applications were not granted and the review petition was not fixed in the court before the expiry of the stipulated 15 days, as granted by the majority judgement to 41 members who contested the Feb 8 general elections as independent candidates, the review petition will become infructuous.
The CJP said Section 7 of the Supreme Court (Practice and Procedure) Act 2023 stipulates that an application pleading urgency or seeking interim relief should be fixed for hearing within 14 days from the date of its filing.
Releasing the detailed judgement is a matter within the determination of the judges themselves, the CJP observed, adding that it was an established jurisprudential principle that no one’s right can be adversely affected on account of an act of the court, which in the present case was the court’s own delay.
If such a scenario was accepted, it would be equally valid that detailed reasons are purposely delayed or never provided and thus render the Constitution, which provides for a review petition and the law which mandates urgent hearing, utterly meaningless, he said.
The CJP also highlighted that 26 months have elapsed, but the review petition against the interpretation of Article 63A of the Constitution has not been decided. Therefore, the same should be fixed for hearing in the next 10 days before a bench in which Justice Shah, Justice Yahya Afridi and Justice Aminuddin Khan should also be members.
Published in Dawn, July 21st, 2024
