A judgement given by the three judges of the Supreme Court has expressed serious concerns over Justice Munib Akhtar’s view that the majority judgment in Justice Qazi Faez case is not a binding future legal precedent.
Justice Munib Akhtar while authoring minority judgment in Justice Qazi Faez Isa review case had objected to the signing of the detailed reasoning by Justice Manzoor Malik after his retirement on the ground that only serving judges can sign judgements. Resultantly, he argued that the majority of six judges is reduced to a plurality of five, and as a consequence, the majority of detailed reasons are no longer a majority and not a binding future legal precedent.
According to two precedent binding Supreme Court judgements - the CJP Iftikhar Chaudhry case (2010) and Al-Jehad Trust case (1996) - judges can sign and author detailed reasons in cases that were concluded before retirement even after retirement. However, Justice Munib distinguished these two judgements and concluded that both cases were distinct as the facts were different, adding that both were wrong to hold that retired judges can sign or write judgements.
Interestingly, three judges, including Chief Justice of Pakistan Umar Ata Bandial, Justice Sajjad Ali Shah and Justice Qazi Muhammad Amin Ahmed also endorsed Justice Munib’s view.
Now, three judges, namely Justice Maqbool Baqar, Justice Mazhar Alam Miankhel and Justice Syed Mansoor Ali Shah, have discussed Justice Munib’s view in their detailed minority judgment wherein Justice Isa’s plea for live coverage of his case was accepted last year.
Read more: Isa questions composition of SC larger bench
The judgment cautioned that ignoring the sanctity and authority of a precedent of a larger bench may pass for judicial arrogance and lead to judicial chaos. "We may, with great respect, also express our concern on adjudicating by some Members of a Bench the precedential effect and value of the opinion of other members of the same bench, in their judgment delivered in the same case. We have never seen such practice in our jurisdiction as well as in any of the foreign jurisdictions," says a three-judge minority ruling.
They noted that members of the same bench differ on issues and strongly express their respective opinions, as well as make comments on the opinion of each other highlighting the reasons for which they think other members have erred in their opinion, but do not adjudicate upon the precedential effect and value of each other’s opinion.
"We believe the question of extracting ratio decidendi and determining precedential effect and value of the opinion of some Members of a Bench of this Court expressed in a judgment delivered in one case, can be examined only in other cases where such a judgment is cited as precedent, and that can be done not only by a bench of this Court but even by a court lowest in the judicial hierarchy; nevertheless, it is in no way a domain of the Members of the same Bench to make this exercise in their respective judgments rendered in the same case", says the minority judgment.
Regarding objection to the signing of the detailed reasoning by justice Manzoor Malik after his retirement on the ground that only serving judges can sign judgements in Justice Isa's case, the minority judgment said that they followed the precedent of a 13-member larger bench of this court, which is binding upon them while sitting in a smaller bench of 10 members.
"We are unable to understand how 4 or all 10 Judges of a 10-member bench can declare the observation made, and the action is done in pursuance thereto, by a 13-member larger bench to be an error in law, even if it may be so. Ignoring the sanctity and authority of a precedent of a larger bench may pass for judicial arrogance and lead to judicial chaos.”
The judgment from the three judges said that although it is not our function to supply the reasons in support of the said precedent of a 13-member bench, or to examine any possible arguments contrary to the opinion of our four learned brothers, in the present case.
"It can be done, in our view, only by a bench larger than a 13-member bench, but we think it proper to note just some of the points in this regard, to show that the precedent of the 13-member bench is based on sound wisdom."
The elaborated, “One of our four brothers had vacated the office of a Judge of this court when they released their detailed reasons on 04.02.2022 and assumed the office of the Chief Justice of Pakistan, but has recorded the detailed reasons, and signed the additional note, in his capacity as a judge of this court which he had on 26.04.2021 when the short order was made, and not in his present position and capacity as the Chief Justice of Pakistan, and their detailed reasons also bear the date of 26.04.2021, the date when the short order was made, and not the date when these detailed reasons were recorded”.
"We, with great respect, say that our learned brother has so done as per the above said settled practice of this Court. Needless to mention that the office of the Chief Justice of Pakistan and the office of a Judge of this Court are two different offices under the Constitution; one stands vacated on assuming the other.
"Similarly, a judge of this court who has vacated his office on retirement joins the detailed reasons recorded by any of his colleagues in support of the short order made by them jointly or records his own reasons, in his status, capacity and authority he had on the date when that short order was made," the judgement added.
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