February 25th, 2021
By Staff Reporter
The Supreme Court has ruled that a review bench should include the author judge or any other judge who has agreed with him on the original bench, adding that the constitution of a review bench is the sole prerogative of the Chief Justice.
The court ruling came as part of 28-page order by a six-member bench hearing petitions by Justice Qazi Faez Isa, his wife Sarina Isa, and others for the constitution of review bench against the Supreme Court’s June 19, 2020 judgment.
In their petitions, Justice Qazi Faez Isa and his wife have sought listing of review petitions before a bench that includes the three minority judges. The petitions by bar associations and the PFUJ pleaded that the review petitions should be heard by the same bench that passed the judgment. The bench, headed by Justice Umar Ata Bandial, had reserved judgment on the petitions on December 10, 2020.
On 22nd February in Islamabad, the six-member bench stated in its order that a review jurisdiction of the court can be invoked only in relation to unanimous and majority judgments of the court. Sarina Isa has also filed a review petition against the three minority judges.
The bench directed to place the review petitions before the chief justice for the constitution of the bench to hear the matter. “As a matter of law and settled practice it is for the Chief Justice, as the master of the roster, to determine the composition of a bench and he may, for a like reason, constitute a larger bench for hearing the review petition,” the court order reads.
The court order stated that the minimum numerical strength of a review bench should be equivalent to the number of judges of the bench that delivered the judgment under review, adding that the author judge should be included in the bench.
Conduct of dissenting judges on the review bench
In its order, the bench cited review cases of Zulfiqar Ali Bhutto and the Panama Papers as a guideline for dissenting judges sitting on review of a majority verdict ‘from slipping from the exercise of review jurisdiction into regarding consideration of the review petition as but the “second round” in an ongoing litigation’.
The bench stated that Justice Dorab Patel was a dissenting judge on the review petition of Zulfiqar Ali Bhutto case but the judge dismissed the petition stating that the learned counsel has failed to persuade the judges, who pronounced the majority judgment of the Court, to revise the finding of guilt of the petitioner’.
“As is clear from the foregoing, Justice Dorab 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 reads.
Similarly, the court order cited the review judgment of the Panama Papers. In the case, the three judges in the majority formed a JIT to probe into the allegations against the then sitting Prime Minister whereas the two minority Judges, including Justice Asif Saeed Khosa, ordered the immediate disqualification of the Prime Minister from the National Assembly. The bench stated that Justice Khosa ‘did not deem it appropriate to comment on the judgment passed by the majority because the majority judges themselves were not persuaded to review their opinion’.
Reiterating that the power of review is limited in scope, the bench stated all judges sitting in the review bench should exercise it ‘in such a manner that it does not overstep into the realm of revisiting or re-hearing the original judgment’.
The other members of the bench comprised Justice Manzoor Ahmad Malik, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar, and Justice Qazi Muhammad Amin Ahmed.