No ambiguity over ‘same bench’ for review pleas: SC

ISLAMABAD: Justice Syed Mansoor Ali Shah has observed that the expression “same bench” under relevant laws governing hearing of review petitions means the same numeric strength of a bench with same judges who have decided an earlier dispute.

“The expression ‘same bench’ leaves little room to speculate on the constitution of a bench. The ‘same bench’ means the same judges, as far as practicable, and the same number of judges, i.e., the same numeric strength of the bench,” he observed on Monday.

There was no ambiguity in this regard, he added.

The observations were part of a dissenting note in the Nov 2 majority judgement in which the Supreme Court had rejected a set of petitions seeking review its Aug 13 verdict in which it had ordered the federal government to recover the remaining over Rs400 billion outstanding Gas Infrastructure Development Cess (GIDC) from industries and commercial entities, but in 60 months than the earlier 24 instalments.

Justice Mansoor says the expression leaves little room to speculate on constitution of a bench

Legal experts, however, are assigning great significance to the release of the dissenting note a day ahead of the hearing by a six-judge larger bench of a set of 18 review petitions in the Justice Qazi Faez Isa case.

The bench comprises Justice Umar Ata Bandial, Justice Manzoor Ahmed Malik, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Mohammad Amin Ahmed.

Almost all the petitioners, including Justice Isa and his wife Sarina Isa, have requested the court not to exclude Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi; instead they should be part of the larger bench which will start hearing the review petitions from Tuesday.

The three judges were members of the bench which had quashed the presidential reference against Justice Isa through the June 19 short order.

Referring to the GIDC case, Justice Shah recalled how initially a three-judge bench was constituted to hear these review petitions (in the GIDC case). In doing so, perhaps Order XXVI Rule 8 of the Supreme Court Rules, 1980, which requires that the same bench to hear the review petition was overlooked, he said. Subsequently, the roster was revised and he was made a member of the bench, making it a four-judge bench.

Then the four-member bench sat and unanimously decided to bring these provisions of the rules to the notice of the chief justice of Pakistan (CJP) for reconstitution of the bench through the Oct 21, 2020, order. The present bench (three-judge bench) which earlier heard the case and delivered the GIDC order was thus constituted. “This made me examine the office noting contained in the file.”

“There seems to be lack of clarity regarding the meaning and scope of Order XXVI Rule 8 of the Supreme Court Rules, 1980,” Justice Shah observed.

As far as practicable the application for review should be posted before the same bench that delivered the earlier judgement in the first round but sought to be reviewed, Justice Shah observed

To substantiate he referred to former CJP Mian Saqib Nisar in the review of the judges’ pension case who observed that there was a great wisdom in law that the review generally and ordinarily should be heard by the same court.

Similarly, a seven-member full court had heard the review petition in the Zulfikar Ali Bhutto case and the main appeal in that case was decided by a majority of four to three judges. All the judges comprising majority and minority, both, were on the bench hearing the review of the majority judgement while deciding an application made for adding two other judges to the review bench.

Concluding the dissenting note, Justice Shah recalled the directive for recovering arrears of cess, saying that in case the GIDC Act becomes ineffective on failure of the federal government to take steps to commence work on laying of the North-South Gas Pipeline within six months, the amount of the cess collected would be returned and refunded to the payers.

Likewise, the federal government will not charge the cess at the rate more than Rs100 per mmbtu from any category of gas consumers in view of Article 25 of the Constitution.