"Adalat ne faislay mein nahi kaha ke appeal ka haq nahi diya ja sakta," Ex-Advocate General Jahangir Jadoon's analysis
"Adalat ne faislay mein nahi kaha ke appeal ka haq nahi diya ja sakta," Ex-Advocate General Jahangir Jadoon's analysis
Transcript
00:00 senior sahafi senior Taziaqa Rather Kasmi sahib, Abid Zubair sahib, Supreme Court Bar, Jahangir Jadun sahib, Sabic Advocate General Sambad.
00:08 Jahangir Jadun sahib I will start with you. Sir tell us, the Supreme Court has given a very detailed decision.
00:13 Do you think that the law that was passed by the Review Act, has been given a correct decision in the light of this decision in the context of the law?
00:20 No, I, Bismillahir Rahmanir Rahim, the decision that has been passed has been passed.
00:25 Now there are different opinions on this, some say that the decision is correct, some say that it is not correct.
00:30 Now we can only tell this decision after reading it.
00:33 Basically, in the section 2 that you have read, according to the Supreme Court, they said that the scope of the review was so much that it will be considered as an appeal.
00:44 So the appeal is obvious, it is present in the Constitution, in Article 185.
00:48 Then they say that in this, until the Constitution is amended, they have not said that there should not be an appeal.
00:56 This is a consensus of the Pakistan Bar Association that the appeal or review of this original rejection of Sue Motto or Article 184 should be done.
01:06 But now how should it be done? The government has made a law on this.
01:11 Now in my opinion, Mr. Zubairi can make a better Bar Council, whether there has been a discussion in this or not.
01:21 Has the Bar Council or the Supreme Court Bar Association given any input?
01:25 I frankly do not know how much output has been given in this.
01:29 So if there is a little discussion in this, it can be made better.
01:33 Or it is written that the review of the Constitution on both facts and law shall be the same as an appeal under Article 185.
01:45 So how will you draw a difference in Article 185?
01:51 If the same right has been given in the appeal, then two appeals have been provided.
01:57 In my opinion, I may be wrong, but the Supreme Court has said that the rules of 1980 have also been made by a full court.
02:09 So when the rules are also made under Article 199 of the Constitution, they said that the rule has precedence.
02:17 This is also a debate that the rule of business of the government cannot be terminated by the Parliament Act.
02:23 So this debate has been opened. The Supreme Court has struck down that this is a fundamental point that this cannot be done without a constitutional amendment.
02:35 That is, you cannot do much scope of review through law.
02:41 Because the scope of review is limited. All the legal fraternities know that the scope of review is very limited.
02:47 You cannot reopen the case, you cannot reopen the judgment, you cannot argue on merit.
02:53 You can rectify the floating on the surface error.
03:01 Some date is wrong, some law reference is wrong, some name is written wrong, or there is a glaring mistake at some point,
03:08 which is said to be in the judgment, that means the person should open it and find out that there is a mistake in it.
03:13 So when you are doing more scope of review, then how will the previous review be compared to that?
03:20 So there were some technical things in it.
03:23 So as far as Nawaz Sharif's case is concerned, I don't think it has any effect on it.
03:27 The reason is that the new law they have made, you will have to differentiate between Article 62 and 63.
03:35 One is qualification, one is disqualification.
03:37 So in Article 62, it is written that this person is qualified for life.
03:43 So it is already a big injustice with any person, whether he is a political leader of any political party, whether he is a PTI, PMLN, JUI, whichever party he is.
03:49 Let me take the initial remarks. You yourself also gave reference to Mr. Zubairi.
03:54 Mr. Zubairi, what do you think, can the court end any legislation like this?
03:58 On the technical ground, it was a very weak law.
04:01 And to amend such a law, a legal amendment is required.
04:07 In the name of Allah, the most Gracious, the most Merciful.
04:09 First of all, I am completely in agreement with Mr. Jadoon.
04:12 Look, our Bar has always had a strong demand that the cases that are in 184(3) and 184(3), there should be an appeal.
04:23 But we have always said that the appeal should be provided by a legal amendment.
04:29 The amendment should be in the constitution and the appeal should be given in accordance with it.
04:34 Look, this law, this law was made in a very short time and they themselves know their objectives better.
04:40 But there were big mistakes in it.
04:42 And as Mr. Jadoon said, the scope of the review is very limited.
04:47 The error has to be on the face of the record.
04:50 And the case cannot be re-argued in the review.
04:53 You cannot take a new point.
04:55 You can say that the judgment that you have given, the judge or the court,
04:59 this is the mistake in it which is clear, factual or legal.
05:02 The scope of the review is not more than this.
05:04 And this situation has been decided since 1935.
05:12 When there was no review in the Government of India Act, it came in our first constitution in 1956.
05:18 The power of review was given in the 62nd and 73rd Aims.
05:22 And a plethora of judgments over the past 70 years have been developed that the scope of review is very limited.
05:29 But the biggest mistake in this law was that instead of a legal amendment,
05:35 you gave the right of appeal that in 184, the power of review will be given and that will be the appeal.
05:40 And any Jadoon sir sitting here, any law student knows that review and appeal are not at all.
05:46 And they said a very right thing.
05:47 And the Supreme Court has also said that if you had to treat it in 185,
05:52 then why did you need to make this law?
05:54 If the scope of review is that it will be read like 185.
05:59 This is what Jadoon sir was saying, the Supreme Court has addressed in its judgment.
06:03 See the basic issue is that review cannot be appeal.
06:06 On this, the section 2 was finished.
06:08 In both law and facts, you said that it will be treated as appeal.
06:12 Then after that you went that bench.
06:15 Okay, the review is in front of those judges or the author judge or after that.
06:20 Now you said that the bench will be heard by a larger bench.
06:24 But the point is that the review cannot be heard.
06:26 Appeal. Now see how wrong you are.
06:29 In the review, it is necessary to have a basic judge, the author judge or some other judge.
06:33 How can that judge?
06:35 How will that judge hear an appeal in his own case?
06:38 He can hear the review because it is shown that as you did this mistake, this mistake was made.
06:43 The appeal will be heard by some other bench or some other judge.
06:46 A judge does not hear the appeal of his own case, his own order in a normal course.
06:51 There was another big mistake in this, in section 3.
06:54 There were big technical flaws.
06:56 No, not technical.
06:58 I am going towards Akhar, Akhar will tell.
07:00 No, not technical.
07:02 [Hindi]
07:04 I'll see you next time. Bye.