ISLAMABAD - Legal experts say that keeping in view two past instances, a larger bench of the Supreme Court should be constituted to hear the Sharif family’s review petitions against the July 28 judgment in the Panama Papers case.
In the past, not only larger benches were constituted to hear review petitions but also the judgments, passed on petitions filed under 184(3) of the Constitution, were reversed.
Former prime minister Nawaz Sharif while addressing lawyers in Lahore, the other day, asked the apex court to take back the judgment that led to his disqualification. On July 28, a five-member bench disqualified the former premier Sharif.
The former prime minister, his children, his son-in-law Capt (retd) Muhammad Safdar and Finance Minister Ishaq Dar have filed the review petitions demanding to set aside the final judgment in the Panama Papers case. It is expected that the review petitions will be taken up after Eidul Azha.
Former attorney general for Pakistan Irfan Qadir said that the review petitions should not be heard by the same bench, which has delivered the judgment in cases under article 184(3) of the Constitution. He suggested that the chief justice should constitute a larger bench and set right the past mistakes to send parliamentarians home under article 184(3).
He said that over the years, the review jurisdiction has been narrowed down, which was against the natural justice and fair trial.
The former AGP said that under the criminal law, if a person kills several people in a bomb blast, then his trial is conducted in an anti-terrorism court (ATC). He has the right to appeal against the ATC judgment in the high court, and then in the Supreme Court. A convicted person can seek relief in the review petition against the top court judgment and at the end can file a mercy petition to the president of Pakistan, he said.
Qadir questioned why parliamentarians were sent home under article 184(3). Except for filing the review petition, they don’t have any right of appeal.
In review petitions, only errors that float on the surface of the judgment are considered. Under Order XXVI Rule 8 of the Supreme Court Rules, 1980, the review petition is heard by the same bench which has passed the judgment.
During the tenure of former chief justice Anwar Zaheer Jamalis, in two cases, a larger bench, different from the bench which had delivered the main judgment, was constituted. The current Chief Justice Mian Saqib Nisar was in both the benches.
On January 22, 2016, a five-member bench headed by ex-chief justice Jamali set aside the judgment of a three-judge bench and allowed the hunting of ‘vulnerable-cum-threatened’ migratory bird – houbara bustard. The review judgment said that all the provinces have their own wildlife laws to protect, preserve, conserve and manage wildlife.
On August 19, 2015, a three-member bench headed by ex-CJP Jawwad S Khawaja passed the judgment barring the federal and provincial governments from granting permits for hunting the endangered bird and reminded them that the country’s laws were not a ‘saleable commodity’.
A senior lawyer, on the condition of anonymity, shared with The Nation that illegality was committed in the review petition of the houbara bustard hunting case.
Justice Dost Muhammad, who was one of the members of the three judges’ bench, was not included in the five-member larger bench, which decided the review petitions, though he was available in the Supreme Court. Justice Qazi Faez was included in the larger bench because he had authored the judgment, and Justice Khawaja retired on September 10, 2015.
The lawyer said that during the proceedings of the review petition, Justice Faez Isa many times inquired from the AAG; “where is the error floating on the surface of the judgment”. Instead of pointing out the mistake, the then AAG continued to quote the WWF and HBF reports. The court, on the basis of those reports, allowed the hunting of houbara bustard.
Yet another Supreme Court bench, in which the bench was changed, the apex court verdict was reversed. On Sept 8, 2015, a three-member bench headed by former chief justice Jawwad S Khawaja suspended licences of Barrister Ali Zafar and Raja Zafar to practice in the Supreme Court for one-year under Canons of Professional Conduct and Etiquette of Advocates, particularly under Rules 159, 164, 166 and 172. The suspension of the licence was the outcome of a show-cause notice issued for writing a letter to former chief justice Nasir-ul-Mulk to separate justice Khawaja from the bench which had been hearing Bahria Town cases.
However, after the retirement of justice Khawaja, the licence of Barrister Ali Zafar was restored approximately after one month. On October 10, 2015, a five-member bench headed by ex-chief justice Jamali restored Barrister Ali Zafar’s licence upon his apology through his counsel. That year, Ali Zafar was the presidential candidate for the Supreme Court Bar Association election from the Asma Jahangir group.
Former AAG for Pakistan Shah Khawar said that there was a very limited scope of review (petitions) under Supreme Court Rules. He said that if any member of the bench requests the chief justice to form a larger bench, he can constitute, however, the chief justice can’t constitute the bench on his own.
Salman Akram Raja, the counsel for Nawaz Sharif’s children said that there has been a practice under Supreme Court Rules that the same bench, which has delivered the judgment, hears the review petitions. He said that they would see the option to request the chief justice to constitute a larger bench as there were examples in the past with such requests.