An unpleasant scene occurred in a courtroom on Tuesday when the presiding judge of a bench hearing review petitions filed against the apex court’s July order in Justice Qazi Faez Isa case rebuked Isa’s wife, Sarina, for calling into question impartiality of Chief Justice of Pakistan Gulzar Ahmed
Sarina Isa is among the petitioners who had challenged a split order delivered by a Supreme Court ten-judge bench on petitions filed against a presidential reference that sought Justice Isa’s removal due to his failure to mention his family members’ foreign properties in his wealth statement.
Seven of the judges had referred the matter to the Federal Board of Revenue (FBR) for an inquiry. The FBR was directed to submit its findings to the Supreme Judicial Council (SJC) which could revive the reference. The SJC is the forum that can hold superior court judges accountable.
In order to hear review petitions against the judgment, the chief justice formed a seven-judge bench comprising all the judges who wrote the majority judgment. One of the members, Justice Faisal Arab, retired on November 3 and later another bench was announced comprising the remaining six judges.
Three judges – Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi – who held the minority view, were excluded from the larger bench.
At the onset of hearing on Tuesday, Sarina Isa came to the rostrum along with her daughter to address the six-judge larger bench led by Justice Umar Ata Bandial. Sarina said the CJ should be impartial and that he is a respondent in this case as a member of the JCP.
She also questioned whether a six-judge larger bench could overturn a judgment of seven judges.
She even directly addressed every member of the bench by name and posed the same question that whether a six-member bench could overturn the judgment of seven judges.
A visibly perturbed Justice Bandial told Sarina Isa not to overstep her limits. "You should be careful while talking about the chief justice and the institution," he noted.
Justice Bandial said the chief justice as the head of the institution has left the matter related to the inclusion of the three remaining judges to this larger bench. “We are just confining ourselves to your application for inclusion of the three minority judges,” he said.
Justice Isa's counsel Muneer A Malik also pressed his arguments for inclusion of the three judges, citing several judgments to establish that the review petition should be heard by the same bench.
The counsel also referred to Zulfiq Ali Bhutto (ZAB) murder case in which three dissenting judges were also part of the review bench.
Rasheed A Rizvi – counsel for the Pakistan Federation of Union of Journalists (PFUJ) – said justice must not only be done, but it must be seen to be done. He said if the three minority judges are not included in the bench it could damage the public perception.
The judges, however, took exception to the comment.
Justice Munib Akhtar noted that Rizvi as an elder of the bar should talk about the law rather than public perception. Rizvi said they have always stood with rule of law in the country.
Justice Bandial also objected to Rizvi's statement.
“What is the public perception? Whether the public has no hope of justice from this bench or you want the inclusion of chosen judges?” he asked Rizvi.
To create balance between judges’ accountability and independence of judiciary, he said, the majority judges upheld the Constitution by giving authority to the SJC.
Justice Bandial also reminded him of an earlier incident when Justice Isa had raised objection to inclusion of two judges – Justice Sardar Tariq Masood and Justice Ijazul Ahsan – in the 10-judge larger bench on account of the alleged benefits they might have in case of petitioner’s judge removal.
Justice Bandial termed that episode as “painful”.
Justice Qazi Amin Ahmed remarked that the court decides cases in accordance with the law and the Constitution rather than on the basis of public perception.
Sarina Isa, however, asked the bench why only she and her children are being chosen to make an example of judicial accountability despite the fact that they are not public officeholders.
She said her husband is not scared of accountability as she and her husband have already made the details of their assets public. She also questions whether the same course of action will be adopted for other judges, government functionaries and military officials.
Supreme Court Bar Association (SCBA) President Lateef Afridi sought time to present his arguments in this case. The hearing of the case is adjourned until Thursday.
Earlier, on July 21, Sarina Isa had filed a review petition against the Supreme Court’s June 19 short order, contending that the split order was discriminatory as it singled out Justice Isa’s family from a newly created “class of persons”.
"By issuing orders under Article 184(3), the Honourable Supreme Court has, effectively, created a class of persons and redefined the private and confidential affairs of individual citizens falling within such class as matters of ‘public importance’," said the petition filed under Article 188 of the Constitution.
Justice Shah dissenting note
A day before the bench started hearing review petitions, another SC Justice Syed Mansoor Ali Shah had maintained that a judge, who dissented from the majority judgment, if available, must be part of the bench constituted to hear the 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,” said a 22-page dissenting note authored by Justice Shah in the apex court judgment in 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 the 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 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, ie, the same numeric strength of the bench."
The SC judge also referred to the ZAB murder case in which 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, said Justice Shah.
He said 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."
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 the 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 a request.
This principle also necessitates that the judge who dissented from the majority judgment should be a 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 the 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 noted that in the ZAB 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.
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