Monday, 3 November 2014

Amicus Curiae Definition as per Judgment

P L J 1984 S C (A J K) 1
[ Review Jurisdiction ]
Present :   RAJA MUHAMMAD KHURSHID KHAN, C. J. SHER ZAMAN CHAUDHRY, J
MUHAMMAD SHARIF—Petitioner
versus
MUHAMMAD IBRAHIM and 10 Others—Respondents
Civil Misc. Petition No. 18/M. R.of 1979, decided on 26-2-1984.
 (i)   Araicus Curiae—
------- Act as—Court—Direction by—Held : Only disinterested adviser or  advocate having no connection with   any party to  be  required  by Court to act Amiens curiae[P. 4] C
Chambers Twentieth Century Dictionary ; Readers Digest Great Encyclopaedic Dictionary & Websters' Third New International Dic­tionary ref.
(ii)    Arnicas Curiae
------- Act as—Requirement of—Court requiring  services  of lawyer   not
engaged in case—Held : Such court only to ask lawyer to act as ami-cus curiae - Held further : It being court's prerogative to ask counsel to act as amicus curiae no counsei   of his own  to  be heard as such [Pp.   3 &41B&D
PL D 196! SC 237 ref
 (Hi)  Supreme Court—
——Review jurisdiction of—Petition—Competency of—Petition for review of judgment in appeal not drawn up and moved by Advocate representing petitioner in appeal—Held : Petition to be dismissed onsuch short ground (alone). [P. ] A
(iv) Review—
------ Power to—Judgment sought to   be reviewed  passed  before court empowered to review judgments passed and orders made by it—Held : Review petition to stand disallowed—Supreme Court—Review juris­diction of. [P. 4] E
(?)   Seprezne Court-
——Review jurisdiction of—See : Review.
Qazi Abdul Ghafoor, Advocate for Petitioner.
Raja Muhammad Siddiq, Advocate for Respondents.
ORDER
Raja Muhammad Khurshid Khan, C. J.—Through this petition the peti­tioner seeks review of the judgment, passed by this Court on 7-4-1979, on various grounds which need not be recapitulated here.
2.                The petitioner, it may be stated, was respondent in the    appeal   (Civil Appeal No.  24 (R. O.)  of     1978)     and     was     represented     by Ch. Muhammad Taj Advocate while Muhammad Ibrahim, non-petitioner herein (the appellant in the appeal), was represented  by  Raja  Muhammad Siddique, Advocate.   The appeal ended in success and the judgment passed by a learned single Judge of the    High    Court on     18-7-1973    against Muhuannad Ibrahim, respondent  herein, was discharged vide     judgment dated 7-4-1979.
3.                This petition which, without the permission of the Court  as stipu­ lated under the Supreme Court Rules, was drawn up and moved by Qazi Abdul Ghafoor, Advocate, on 20-5-1979, for its being contrary  to law,  is liable to be dismissed on this short ground.
4.       Besides, the review petition, it is significant, pertains to  the period when this Court had no review powers.   The  question  as to  whether  the review of an order pertaining to the period when this Court was not clothed with the powers of review is competent came up for consideration in   a re­ view petition titled Ajaib Hussain v. Mohammad Fazil (Civil Review No. 1 of 1980).    The petition, vide, order dated   17-5-1983, was  disallowed with the following observations :—
"Considering the proposition in t'ne Vig"nt ~vtftrcA. *tras fetWi &&%& sJsoxs. <£ is necessary to examine the language used in the Act 1980. It reads as already stated in the earlier part of this judgment :—
'The Supreme Court of Azad Jammu and Kashmir shall have power subject to the provision of any law and of any rule made by the Supreme Court to review any judgment pronounced or any order  From the plain reading of the Act it becomes clear that the words used are clear, precise and unambiguous. The language used is a clear manifestation of the fact that the legislature intended it to be prospective in operation. In this view of the matter the review peti­tion would be permissible in respect of only those judgments and ^rders which have been passed after the Act was legislated. A judg-m-r.t of this Court which is now being sought to be reviewed was -aised on 30-5-1979. At the time it was passed, the Supreme Court had IK power of review either under the provisions of Interim Con-nituticn Act or under any other Saw. The matter in dispute had -naliv been decided and the controversy set at rest vide the impugned iudzment. It was only in June, 1980, when the Supreme Court for the "first time got invested with the review powers. As the Act has -r retrospective effect so the Supreme Court could not therefore, be aVked to exercise its newly acquired jurisdiction and power under the Review Power Act 1980, to correct the alleged errors and illegalities committed before the commencement of the Act. To hold otherwise would not only amount to putting a construction on the Act not warranted by the language used in it but it would lead to absurdity as there will be no limit to its going backward.
In the ultimate analysis we find that Azad Jammu and Kashmir Sup­reme Court Review Power Act 1980 was prospective in operation. Onlv the judgments and orders passed after the Act could be open to review."
5.                Before proceeding further we may state here that an     application drafted bv Mr. Muhammad Yusuf Saraf,  the learned Advocate,  on 23-S- 198'   was received in the Registry.   The application contained a    request that" permission may be given to the learned  Advocate to appear and  argue the case for the petitioner. This application was disposed of vide order dated 31-1-1984.    The disposal was in terms that if the  review  petition  is    not competent there hardly arises any occasion to give special  permission     to Mr. Muhammad Yusuf Saraf to appear and argue the case.     Copy of the order was also sent to the learned Advocate.
6.                Now another application has been left by Mr.   Muhammad Yusuf Saraf Advocate, in the Registry which, today, is placed  before the Court for consideration.  This application wants the Court that Mr. Saraf may be allowed to argue the petition as 'amicus curia'.
7.                We have given our due consideration to this application but    we could not persuade ourselves to accept it.   In the first instance it is only the Court's prerogative to ask a counsel to act as amicus curiae.   A counsel, on his own  cannot be allowed to say that he may be heard   as amicus curiae, There is no case in our knowledge in which such a method may have been approved by the Court.
8     Let us now determine the scope of the duties of an 'amicus curiae''. ' Amicus Curiae", according to the Chambers Twentieth Century Dictionary,  means : —

"a friend of the law-court, a disinterested adviser, not  a party  to the case: (wrongly) a friend in high quarters."Similarly, in the "Reader's Digest Great Encyclopaedic Dictionary" the word 'amicus curiae' is defined to mean :—"Disinterested adviser.    (L, 'friend of the Court')."In "Webster's Third New International Dictionary" it is denned as under :—-
"friend of the court : A by&tander that suggests or states some matter of law for the assistance of a court ; specif : a laywer that files a printed brief or makes an oral argument before an appellate court on behalf of a person affected by or interested in a pending case but not actually a party to it."
9. In view of the above it hardly needs an emphasis that only a dis­interested adviser or an advocate who has no connection with a party can be required by a Court to act as 'amicus curiae'. In the instant case Mr. Muhammad Yusuf Saraf, the learned Advocate, vide application dated 23 8-1983, referred to above, sought permission of the Court to argue the review petition on behalf of the petitioner. Undoubtedly, according to his own application, he is interested in the petitioner. How can he be, in suchposition, allowed to act as 'amicus curiae' ? An Advocate, of course, can file a printed brief or make an oral argument on behalf of the person, though not a party, who stands affected by the decision. But in this case no such situation even is available to Mr. Muhammad Yusuf Saraf to allow him to act as 'amicus curias'1 on behalf of the petitioner.
I 10. It is elementary principle of law that only the Court which •requires the services of a lawyer not engaged in a case may ask him to act las 'amicus curiae''. That is why in a case reported as 'Sir Edward Snelson |v. Judges of the High Court of West Pakistan Lahore' (P. L. D. 1961 S. C.
237), the learned Chief Justice observed that an Advocate appearing as 'amicus curiae' is entitled to fee as well as other expenses permitted by the Court. In view of the above the application of Mr. Muhammad Yusuf Saraf to allow him to argue this petition as 'amicus curiae' stands turned down.
11. On merits the review petition pertains to the period when this Court had no powers to review its order. Therefore, this review petition, while reiterating our view in the case referred to above, stands disallowed. Qazi Abdul Ghafoor, the learned Advocate for the petitioner, present in 'the Court, in view of the dictum in the case referred to above, does not want to prosecute this petition.
(TQM)                                                                      Petition disallowed.

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