The Supreme Court (SC) has issued guidelines on how dissenting judges should act if they are called to sit in a review of a majority judgment, and these guidelines could have significant bearings on the case of Justice Qazi Faez Isa.
The guidelines are part of a 28-page order issued by a six-judge bench seized with the pleas to form an appropriate bench to hear review petitions against the Supreme Court’s June 19, 2020 judgment in the Justice Isa case.
It is pertinent here to mention that, a day earlier, the SC had announced its verdict on petitions seeking a larger bench to review a majority judgement in Justice Isa case and had decided to send the matter to Chief Justice of Pakistan (CJP) Gulzar Ahmed.
In its order released on Monday, the court held that for the purpose of Order 26, Rule 8 of the Supreme Court Rules (SCR) 1980, the minimum numerical strength of the bench that delivered the judgement or order under review was the numerical strength of the bench, which heard and decided the original matter regardless of whether the judgement under review was passed unanimously or by the majority.
Today, while keeping in view the matter of Justice Dorab Patel’s judgment in Zulfikar Ali Bhutto review case and Panamagate review case, the bench issued a 28-page order, wherein it was stated that Justice Patel believed that the question of whether a case had been made out for the review of a judgment was essentially something for the judges who actually delivered the judgment under review to decide.
“The words and wisdom of Justice Dorab Patel are evergreen and, in our respectful view, merit reflection by all judges in every generation,” it read, referring to the segments of the order which observed Justice Patel was aware of and sensitive to the possibility of judges slipping from the exercise of review jurisdiction into regarding the review petition as but the “second round” in ongoing litigations.
With regard to former chief justice Asif Saeed Khosa’s observation in the Panamagate case, it was noted that the former CJP did not deem it appropriate to comment on the judgment passed by the majority and “dismissed the review petitions simply”.
The court also reiterated that the power of review is limited in scope. Consequently, it must be exercised by all the judges in the review bench in such a manner that it does not overstep into the realm of revisiting or re-hearing the original judgment.
To this, the petitioners had raised the plea that all the three judges — Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, who had dissented from the majority judgement — were not made part of the bench that would hear the review petitions.
Justice Shah had declared that a judge, who dissents from a majority judgment, must be part of the bench constituted to hear review petition if he is available.
“There are many other cases of our jurisdiction as well as the Indian jurisdiction wherein dissenting judges were part of the benches that heard the review petitions against the judgments of the court pronounced in terms of the majority opinion,” said the 28-page dissenting note.
CJP Justice Gulzar Ahmed constituted a 10-member, larger bench to hear the review petition filed by Justice Qazi Faie Isa in the presidential reference filed against him over which Justice Umar Ata Bandial is set to preside.
Reportedly, Justice Mansoor Ali Shah, Justice Yahya Afridi, and Justice Maqbool Baqir are part of the bench while Justice Aminuddin Khan has been included in the bench due to Justice Faisal Arab’s retirement. The case will be heard on March 1.
Earlier this month, CJP Gulzar, in a move purportedly to uphold the impartiality of the apex court, had said in an official order that Justice Isa “should not hear matters involving the prime minister”.
This move comes shortly after Justice Isa had submitted a written petition filed, in a personal capacity, against Prime Minister Imran Khan, wherein the CJP said that Justice Isa must not be involved in cases concerning the premier “to uphold the principle of un-biasness and impartiality”.
The petition regarding the aforementioned case had been heard by a five-judge larger bench headed by CJP Gulzar. The decision came as the Ministry of Finance submitted a signed undertaking of the premier, denying such an action being taken by him.
