'Dissenting judges' must be part of larger bench

Just a day before the start of Justice Qazi Faez Isa’s review petition hearing against the majority judgment, Supreme Court Justice Syed Mansoor Ali Shah has held that a judge, who dissented from the majority judgment, if available, must be part of the bench constituted to hear review petition.

"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,” says the 22-page dissenting note authored by Justice Shah in his review petition against the apex court judgment in the GIDC case.

“It can, therefore, be safely concluded that a judge, who dissented from the majority judgment, if available, must be member of the bench for hearing the review petition filed against that majority judgment," adds the justice.

The observation is significant in the context of Justice Isa review case wherein three judges, namely Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, who had minority view, are excluded in the larger bench that is taking up the SC judge case today (Tuesday).

Justice Isa and superior bars have also contended before the apex court that the three judges should also be part of the larger bench.

A six-judge larger bench led by Justice Umar Ata Bandial will take up review petitions against the June 19 order today (Tuesday). The majority judges had referred the matter to the Federal Board of Revenue (FBR) for conducting inquiry regarding foreign properties of Justice Isa's family members. The FBR was directed to submit report in the Supreme Judicial Council (SJC) as well.

However, it is expected that counsels for the petitioner judge and bars will argue on the inclusion of the three available judges in the larger bench today (Tuesday).

In present GIDC case, initially a three-member bench was constituted to hear the review petitions but Justice Shah was not included in the bench. Subsequently, the roster was revised and Justice Shah was also made a member of the bench, making it a four-member bench.

However, the four-member bench sat and unanimously decided to bring that relevant SC Rules to the notice of the chief justice for re-constitution of the bench on October 21.

Later, the three-judge bench led by Justice Mushir Alam and comprising Justice Faisal Arab and Justice Syed Mansoor Ali Shah heard the GIDC case.

Justice Shah, in his dissenting note, said that Article 188 of the Constitution states that the Supreme Court shall have power, subject to the provisions of any Act of Majlis-e-Shoora (parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.

"Parliament has not so far passed any Act under this Article; Order XXVI of the Supreme Court Rules, 1980, however, contains the rules that regulate the power of review of the Court," Justice Shah said that Rule 8 very clearly and firmly prescribes that the application for review shall, as far as practicable, be posted before the “same bench” that delivered the judgment or order sought to be reviewed.

"The expression ‘same bench’ leaves little room to speculate the constitution of the bench: the ‘same bench’ means the same judges, as far as practicable, and the same number of judges, i.e., the same numeric strength of the bench."

The SC judge also referred to the Zulfiqar Ali Bhutto (ZAB) murder case wherein a seven-judge bench of the apex court heard the review petition. The main appeal in that case was decided by a majority of four to three judges. All the judges comprising the majority and the minority opinion, were on the bench hearing the review of the majority judgment, says Justice Shah.

He said that a question as to the inclusion of the three judges, who gave the dissenting judgment, in the bench hearing the review petition also arose in the ZAB murder case, and it was held that as they were part of “the bench that delivered the judgment sought to be reviewed” and were “available for the disposal of the review petition”, their presence on the bench was necessary.

The SC judge referred to the two judges’ opinions in the ZAB murder case that the judgment sought to be reviewed was delivered by the bench comprising seven judges of the court. They did not consider that judgment as the judgment delivered by only four judges comprising the majority.

"These observations of their lordships are in line with the language of Rule 8, which contains the expression ‘same bench that delivered the judgment or order sought to be reviewed’, and not the majority members of the bench who delivered the majority judgment or order sought to be reviewed," says Justice Shah.

It is a well-established practice of this court that when a case is heard by a bench of two or more judges, the case is decided in accordance with the opinion of such judges or of the majority of such judges. A judgment or order of the court is pronounced in terms of the majority opinion; such judgment or order is of the bench that heard the case and, for that matter, of the court, and not only of the judges whose opinion prevailed as a majority opinion.

“This is why a unanimous opinion of a five-member bench on a legal question can be overruled by a majority of four judges while sitting in a seven-member bench. It is the numeric strength of the whole bench that determines the judicial power of its members, and not the numbers of the individual judges in majority."

"It is also a well-established principle of precedent that judgment of a larger bench of this court is binding on the benches of this court consisting of judges less than that larger bench.

A smaller bench cannot request for constitution of a larger bench to revisit the opinion of a larger bench on any question or principle of law; only a bench of co-equal strength can make such request.

This principle also necessitates that the judge who dissented from the majority judgment should be member of the bench that is to hear the review petition, as a judgment pronounced in terms of the majority opinion of a larger bench cannot be reviewed by a smaller Bench consisting of only the Judges holding the majority opinion.

It is utmost necessary to maintain quorum of the bench that delivered the judgment under review. It is because of this legal compulsion, that new members are added to the bench when any of its earlier members retires or is not available for any other reason, to maintain the quorum of the bench for hearing the review petition.

The judge also notes that in the Zulfiqar Ali Bhutto review case, the petition was dismissed unanimously by all the seven judges who were divided into four-three in the judgment pronounced in the main appeal case.

Muhammad Akram, J., speaking for the majority dismissed the review petition with the observations that “the errors and omissions pointed out by [the petitioner’s counsel]…have been found by us to be of inconsequential import, having no material bearing upon the fundamental and essential conclusions reached in the majority judgment as to the guilt of the petitioner, on the various counts on which his convictions have been upheld, as well on the question of sentence.”

And Dorab Patel, J., speaking for the minority also held that the review petition had to be dismissed and further agreed with the view of Akram, J., that the question of sentence could not be raised in a review petition, and if they were to alter the sentence in this review, they would be unsettling the settled law."

"There is another aspect of the matter to look at, i.e., when a member newly added in the review bench due to non-availability of an earlier member, who was not earlier even part of the bench, can make review of judgment, then how can any restriction or limitation be imposed on the jurisdiction and judicial power of review of the Member who earlier dissented.

There are several instances when members newly added to the bench had recalled or reversed the original judgment or order in review jurisdiction despite contrary view of the member who had earlier authored the judgment of the court.

“It can, therefore, be said with certainty that the jurisdiction and judicial power of the Judge who earlier dissented from the majority judgment of the bench is similar and co-extensive with that of those judges whose opinion became the majority judgment of the bench, in hearing the review petition against that majority judgment."