ISLAMABAD: A six-member bench of the Supreme Court on Monday released its determination on a set of review petitions moved by Justice Qazi Faez Isa, his wife Sarina Isa and others and directed the court office to place them before the chief justice to issue directives for the constitution of a bench as deemed appropriate.

In a 28-page order, the apex court, which had reserved its ruling on Dec 10 to adjudicate if the present six-judge bench or a larger bench to determine the set of petitions seeking review in the Justice Isa case, held that its review jurisdiction could be invoked against majority and unanimous judgements only (and not against any dissenting notes).

Headed by Justice Umar Ata Bandial, the six-judge bench referred the matter to Chief Justice of Pakistan Gulzar Ahmed, a master of court roster, to determine the composition of a bench — in view of the settled practice — as he may constitute a larger bench for hearing the review petitions.

The petitioners had raised the plea that all the three judges — ­­Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, who had dissented from the majority judgement — were not made part of the bench that would hear the review petitions.

Review jurisdiction can be invoked against majority and unanimous judgements only, says SC order

In its order released on Monday, the court held that for the purpose of Order 26, Rule 8 of the Supreme Court Rules (SCR) 1980, the minimum numerical strength of the bench that delivered the judgement or order under review was the numerical strength of the bench, which heard and decided the original matter regardless of whether the judgement under review was passed unanimously or by majority.

And the review bench should comprise the author judge, if still on the court as its member and in case he is unavailable, then any other judge who agreed with the author judge should be included in the bench.

The order explained that it emerged by following the practice of the Supreme Court that the constitution of the review benches or any bench was the sole prerogative of the chief justice under Order XI; besides, the direction in Order 26 Rule 8 that the review petitions should be posted before the ‘same bench’ was subject to the requirements of practicability.

In constituting a review bench, the chief justice should ensure substantial compliance with Rule 8 of Order 26 by including author judge (if available) in the review bench. However, where it is not practicable to do so, there is no obligation to have exactly the same judges on the bench; besides, the numerical strength of a review bench has to be the same as that of the original bench regardless of whether the judgement under review was passed unanimously or by majority, and in certain circumstances, the chief justice may in his discretion constitute a larger bench according to the importance of a matter or other considerations of practicability.

Referring to the dissenting opinion of Justice Dorab Patel in the 1979 Zulfikar Ali Bhutto case, the Supreme Court observed that Justice Patel did not deem it appropriate to comment on the judgement passed by the majority.

The court observed that the power of review was limited in scope and must be exercised by all the judges sitting in the review bench in such a manner that it did not overstep into the realm of revisiting or re-hearing the original judgement.

Published in Dawn, February 23rd, 2021

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