The Supreme Court on Monday announced its decision on whether the present six-judge bench or a larger bench would hear a set of petitions seeking review of the court’s majority judgement in Justice Qazi Faez Isa case, sending the matter to the Chief Justice of Pakistan Gulzar Ahmed.
Justice Umar Ata Bandial, who was presiding the six-judge bench, announced the 5-1 majority judgement. Justice Manzoor Ahmad Malik disagreed and will write a dissenting note.
The review petitions had been moved by Justice Isa, his wife Sarina Isa and different bar councils, calling for formation of a larger bench instead of a six-judge bench.
“The chief justice can form a larger bench on review petitions if he wants,” said the apex court, adding that normally the bench which delivers the judgement also hears the review petitions.
It also noted that review jurisdiction could only be invoked in relation to the unanimous and majority judgements passed by the Supreme Court.
Justice Bandial said it was mandatory to include the judge who wrote the decision in the review bench and if they were not available, then “the judge who agreed with the [court] order is part of the bench”.
“As a matter of law and settled practice it is for the [honourable chief justice], as master of the roster, to determine the composition of the bench and he may, for like reason, constitute a larger bench for hearing the review petition,” the order stated.
A six-judge bench headed by Justice Bandial had reserved the decision in a previous hearing on December 10, 2020.
“My understanding of the court rules is that the review petitions are always posted to the same bench,” Sarina Isa had said, asking if it was possible that the review petition was heard after amending these rules.
Justice Bandial had observed that different court rules did not exist independently rather they had to be interpreted harmoniously, stating that under Order 11 of the court rules, it was the chief justice who constituted the bench and which was supposed to be accepted by all. “We will interpret and give a judgement on this,” he had said at the time.
Sarina had replied that being the head of the Supreme Judicial Council, the chief justice was a party in the matter.
“No, it is not like this,” Justice Bandial had said, adding that one did not become a party just like that.
Justice Isa was the subject of a presidential reference that alleged he had acquired three properties in London on lease in the name of his wife and children between 2011 and 2015 but did not disclose them in his wealth returns. Justice Isa contested the allegation, saying he was not a beneficial owner of the flats — either directly or indirectly.
In June 2020, the Supreme Court threw out the reference, terming it “invalid”.
“[The reference] is declared to be of no legal effect whatsoever and stands quashed,” read the majority (9-1) short verdict on a petition filed by Justice Isa and others seeking the reference’s dismissal.
However, seven of the 10 judges on the bench hearing the case ordered the Inland Revenue Department and the Federal Board of Revenue (FBR) to seek explanations from the judge’s wife and children on the nature and source of funding for three properties in their names in the United Kingdom and submit a report to the SC registrar.
Justice Isa then approached the apex court, seeking a review of the decision. Bar associations, including the Sindh High Court Bar Association, also filed similar petitions.
A seven-judge bench was constituted by the SC to hear the petitions but four premier bar associations of the country challenged it in a joint one-page application and requested that the matter be placed before the CJP to form a larger bench comprising all the judges who had decided the constitutional petitions against the filing of the reference.
Sarina Isa too had personally submitted an application to the SC registrar with a request to include all the judges in the full court who had earlier decided her husband’s petition.
