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Analysis

Curative Review: Petition Against Justice Isa Will Fail To Oust Him

In my article published in Naya Daur Media on August 28, 2019, I had predicted that this catapult targeting Justice Isa will continue until the judge finally surrenders. I wrote, “…if there is a conspiracy at all, it is not to oust Justice Faez Isa but rather to break him emotionally, which he might, even if he successfully survives the other reference pending against him. The best way to break a man is to ridicule him so that he is not left with enough reasons to keep fighting. Had it been any other judge he would have most likely given up by now. ”

Justice Isa too during his arguments averred that it crossed his mind plenty of times that he should just quit and resign but that he is fighting for the future of judiciary.

So thankfully the Honourable judge did survive the legal Reference against him but the ridicule still continues.

A review is something which is filed after the final judgement and it has a very limited scope. The terminology limited scope substantially means that even if the petitioner’s review petition is allowed, the amended decision will only add to the final judgement. It will not be altogether different. That is why even though the references against Honourable Justice Qazi Faez Isa were already quashed in the previous judgement by the Supreme Court, the review order dated 26 April has added to the already quashed references and now the entire adventure against Justice Isa has been rendered as mala fide.

This limited scope, which is rarely exercised is usually ‘the end’ to all the proceedings in the final matter in almost every state of the world following the Western jurisprudence. A drowning man catches at a straw and now the government is looking to find something in what has already come out of the limited scope; a curative review. There is no practice as such of a curative review, something to be filed even after the review on final judgement. However, the government is relying on a judgement of Indian Supreme court in case titled Rupa Ashok Hurra vs Ashok Hurra & another, 2002. The Indian Express reports it as, “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.”

The said case involved a matrimonial matter and the said curative review is usually only filed by criminals which have already been convicted. Therefore, this curative review is nothing more than a mercy petition which in substance does not alter the main decision in the final judgement.

Is Justice Isa really guilty? There is in fact no case made against him except moral demands such as: judges should also be accountable’, ‘judges should also give money trails’, ‘if Imran Khan can show 35 year old receipts (I would really love to see that drawer) then why can’t judges’, ‘have judges come from sky, they ask’! Of course judges should be held accountable, but one can only be held accountable as per the law, not otherwise. Is it a coincidence that the only 2-3 judges of higher courts who have so far been shown the accountability mirror in the last few years had only but one thing in common? That one thing is giving judgments having been reluctant to twist the law for the boss’s appeasement; that one boss who considers to be exempt from everything including accountability.

The people we thoughtlessly accuse of being dishonest merely on the basis of our ideology of life are in fact listening to the beat of some other drummer, one which cannot be comprehended by the so called normal people. Squeezing the gist out, a man like Justice Saqib Nisar despite having been retired from an honourable position as the Chief Justice of Supreme Court of Pakistan left no legacy behind. But a man like Justice Waqar Seth leaves more than legacy behind. Men like him leave behind hope, something people, or a nation wait for centuries.

Same is the case with the Honourable Justice. All the allegations against Justice Qazi Isa and all the operations so far in which his family was also ridiculed were initiated in the hope that he will finally succumb to injuries and would one day resign from his post hoping to save what was left. Instead, he stood firm and stands firm in the face of daily ridicule from the slaves of slaves. This steadfastness, though very faint, is that tiny hope this nation needs, i.e. there are still some honourable people left in this country and would rather face a bullet or ridicule but will not let go of their steadfastness.

The question we need to ask ourselves is: where are we headed? And what is the future of the Justice system in the backdrop of massive campaigns against Justice Isa and former Chief Justice of Peshawar High Court (late) Justice Waqar Ahmed Seth.

Whereas the rest of the world was hit by COVID-19, we were hit by something more dangerous than the virus and that is the incompetent government at the helm.

The PTI government has been unable to deliver. We are now officially living in the age of empty rhetoric where the government seems oblivious to the chaos all around. As serious challenges facing the country compound, the government is busy quarrelling with a judge of the Supreme Court.

The PM says that the opposition is afraid that his government might succeed. By saying this, the PM has inadvertently admitted that he has not succeeded as of yet. This statement is an extremely positive development in the wake of constant denial from the government quarters about the reality. I believe that PM Khan was already set to fail as his methods of coming into power were dubious. From the exaggerated complaint of rigging in 2013 Elections to the blocking of the capital and sensationalizing the youth of this country to his personal motives of coming to power, Khan was just another politician. This path definitely had unintended consequences, and everything he designed for his opponents came back to him more than them.

When a partnership was managed behind closed doors – All of a sudden the Supreme Court of Pakistan, which is supposed to be the sacred symbol of justice, some of its judges became a tool for the regime to come. In the common aim of diminishing PML-N, they were also diminishing Pakistan. With respect, the SCP had been converted into a political propagandist, to have the authority to decide on its own as to who can and who cannot run the election, and for how long! The SCP also put itself in a vulnerable and objectionable position by magnifying its yardstick towards just one factor of this country-PML-N.

In the rest of the world, the Supreme court acts as a protector of the justice system and has a fine hierarchy. The Supreme court is the last door one would knock and never ever the first one. Because, they know that doing so would thrash the justice system. The most powerful courts in all developed countries are the Trial courts, the courts which are usually not respected in the state of Pakistan. Unsurprisingly, the justices of Pakistan have never been able to do this just one thing which would set the system right straight away. This journey was never embarked upon by any chief judge either due to fear of the unknown or the limitations which shadow any other Pakistani or may be the self-interest to remain more relevant than the Trial courts.

By acting as the first and final decision maker of Nawaz Sharif, Maryam Nawaz, Talal Chaudhary, Imran Khan, Jehangir Tareen, and others, the SCP has embarrassed itself in the history and this era, if rightly reported will testify to that. If those Judges whose remarks were celebrated in the media were so sincere, as per the law, all these matters must have been sent to the right forums. And if there were no other forums other than itself then it must have adjudged that such forums be so made and enacted to by the legislators of this country.

Calling one Mafia and other ‘the saint’, is not what Supreme courts do, perhaps not even in countries with weaker justice system than ours. This episode and the remnants of Justice Iftikhar Chaudhry, further exacerbated by Justice Saqib Nasir have dented the justice system severely.

The hope that this exercise would ultimately become a norm was thwarted by the underdog judges – the likes of Justice Waqar Ahmed Seth (Late) and Justice Qazi Faez Esa. The author hopes that future will eventually bring equilibrium to the justice deprivation in Pakistan. Forcing the Accountability Court to prioritize the case of Nawaz Sharif while thousands of references are still pending; there was no justice. Furthermore, obligating Nawaz Sharif and his counsel to quit the rest of life and be present for day to day hearings, Monday to Saturday, was the most intriguing directions any Supreme Court would give to the Trial court in any state of the world. It was only when Khawaja Haris, Nawaz Sharif’s counsel in fulmination withdrew his representation officially that the Supreme Court had to amend its directions.

Law is the most easily transformable yardstick when the end can be achieved by mere clever choice of words. Twist a few words upside down and you will come up with an authority to make the already made decision in your head a reality. Take the term ‘in the interests of justice’, for instance. Many decisions which cannot otherwise be rationally adjudged are eventually given the cure of ‘in the interests of justice’. It is like a ventilator, a temporary cap on the inevitability until something new needs to be done ‘in the interests of justice’. This is why the Supreme Court owes an even higher duty of care towards all the citizens of Pakistan when dispensing justice.

It is highly unlikely that this curative review petition will succeed legally inside the court as no such petition has ever even been submitted before the Supreme Court of Pakistan as per my knowledge. However, it needs reiteration that the aim is not to win at all but to slash the dignity of the judge and killing his spirit. Whether or not the regime will by and by succeed in doing so is an altogether different story for the time to tell in the future.

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