In an important development that may have bearing on the Justice Qazi Faez Isa case, the apex court has offered guidelines, explaining how dissenting judges ought to act if they are called upon to sit in a review of a majority judgment.
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 Justice Isa case.
The bench, while referring the matter to Chief Justice of Pakistan Gulzar Ahmed to form an appropriate bench in Isa case, offered some interesting guidelines for minority judges and discussed both Justice Dorab Patel’s judgment in Zulfikar Ali Bhutto review case and Panamagate review case.
The order said Justice Patel believed that the question whether a case had been made out for the review of a judgment was – in the final analysis – essentially something for the judges who actually delivered the judgment under review to decide.
“If those judges were not so persuaded, then any other judges sitting on the bench hearing the review ought to show maximum restraint and maintain judicial dignity and quietude, particularly when they had already expressed an opposite view in the original matter.”
The order said it is quite obvious that Justice Patel was acutely aware of, and alive and sensitive to, the very real possibility of the judges slipping from the exercise of review jurisdiction into regarding the review petition as but the “second round” in an ongoing litigation.
“The words and wisdom of Justice Dorab Patel are evergreen and, in our respectful view, merit reflection by all judges in every generation.
“In the concluding paragraph of his judgment (in review) Justice Dorab Patel reflected on how a judge who dissented ought to act if called upon to sit in review of the majority judgment.”
Referring to review petitions in the Panamagate case, the court said it is evident from former chief justice Asif Saeed Khosa's observation that he did not deem it appropriate to comment on the judgment passed by the majority because the majority judges were not persuaded to review their opinion.
“Therefore, in these circumstances he [Justice Khosa] 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.
Some legal experts said these observations may restrict the three minority judges – Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi – to pass any observation, if the CJP includes them in the larger bench hearing review petitions against the June 19, 2020 majority judgment in Qazi Faez Isa case.
The majority judges have taken a contrary view to the judgment of Justice Mansoor Ali Shah in the GIDC case – a judgment that was interestingly delivered one day before the six-judge bench started hearing review petitions against June 19, 2020 order in Isa case.
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 22-page dissenting note.
“It can, therefore, be safely concluded that a judge, who dissented from the majority judgment, if available, must be a member of the bench for hearing the review petition filed against that majority judgment," added the justice.
In the 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 the relevant SC Rules to the notice of the CJP for reconstitution of the bench on October 21, 2020. Later, a three-judge bench – comprising Justice Mushir Alam, Justice Faisal Arab and Justice Mansoor Ali Shah heard the GIDC case.