WITH THE UTMOST RESPECT

LIST OF NOTIFICATIONS REPRODUCED IN THE <!--[if gte mso 9]> WITH THE UTMOST RESPECT [Case: Rauf B. Kadri v. State Bank of Pakistan PLD 2002 Supreme Court 111] By Ch. Irshad Ahmad, Consultant President's Secretariat, Formerly Federal Law Secretary In Rauf B. Kadri v. State Bank of Pakistan PLD 2002 Supreme Court 111, a three-Member Bench of the Supreme Court heard a civil appeal. Two members of the Bench gave judgement dismissing the appeal. The third member gave dissenting judgement and decided to allow the appeal. The order of the Court, at the end of the judgements, signed by one of the majority members contains the statement: "At the time of announcement of judgments in Court, however, it was a unanimous verdict of dismissal". The dissenting member appended a note to the order of the Court to read: "As far as I remember it was a majority verdict at the time of announcement of judgement". Obviously both statements cannot be true. One must be untrue. Earlier a petition for leave to appeal against the judgement of Balochistan High Court was heard by a three-Member Bench of the Supreme Court. Two members of that Bench decided to grant leave to appeal and gave reasons for their decision. The third member decided not to grant leave to appeal and gave reasons for his decision. In the light of the majority judgement leave to appeal was granted. The order of the Court at the end of the judgement, however, contained the following statement (so far as material). "After hearing the learned counsel.., by consent of all the Members of the Bench, leave to appeal was granted... [the dissenting member] at that time did not inform the remaining Members of the Bench that he wanted to pass an order otherwise than announced (orally) in open Court. His separate note is surprising". I wrote comment on the said order of the Court under the title "Variation of Judgement Announced Orally" PLD 2002 Journal 211. The view I have expressed in the said comment is that a Judge can lawfully vary his decision announced orally. The view was supported by national as well as foreign precedents. I concluded that even if at the time of oral announcement of the decision the dissenting member had agreed with the majority members in granting leave to appeal he could legitimately arid lawfully hand down a dissenting written judgement, and in view of that legal position there was no need to express "surprise" on his dissenting written opinion in the order of the Court. Judicial recrimination is rarely found in the decisions of Judges. The traditions have been that personal attacks are politely concealed. Appeal Courts overturn the decision of the' Judges of lower Courts in the nicest possible way. The Judges are particularly very respectful to their colleagues of coordination jurisdiction. The dissenting Judges always apologize that they "have the misfortune to disagree with their colleagues". They are naturally diffident in dissenting with their noble and learned brethren. Typical of the English judicial style is Theo Mathew's Fictional Divisional Court Judge who was so bothered in choosing appropriate words while the other members of the court were delivering their judgements whether he should say that he agreed with them or that he concurred with them that he had a nervous breakdown from which he never recovered [Forensic Fables, pp. 275-76]. In 1941 Lord Atkin authored a dissent. He described the conclusion reached .by the other Judges as "fantastic". Lord Chancellor Simon who had seen in advance copy of Lord Atkin's dissent suggested that he (Lord Atkin) should censor his remarks. Lord Atkin resisted the suggestion. After delivering judgement Lord Atkin took his daughter to lunch. They sat at a table together. Nobody joined them. Lord Macmillan and Lord Romer seemed to be preoccupied on entering the room of the cafeteria: Lord Atkin's daughter later recalled that Lord Whright, another Law Lord, "passed by us without a word... but I think perhaps my father knew that he was going to be unpopular". So outraged were some of Lord Aktin's colleagues that Lord Maugham, who presided at the hearing, wrote a letter to the times criticizing Lord Atkin's language in the dissenting opinion. It was widely believed that Lord Atkin "never really recovered from this treatment before his death in 1944. [David Pannick, Judges (1987) pp.19-21]. This depicts the small Judge's sensitivity regarding judicial comity. Judgements of superior courts play two roles. One, that they decide disputes between two parties, and two, they set precedent to provide certainty and stability in the administration of justice and in that way promote rule of law. Selected judgements of superior courts are published in the form of law reports. In Pakistan publication of Law Reports is regulated by the Law Reports Act, 1875. Section 5 of the Act requires that all courts and tribunals (the Supreme Court, High Courts, Federal Shariat Court, Service Tribunal, Income Tax Appellate Tribunal etc.) deciding a matter shall at the end of the judgement or order certify in the form specified in the Schedule to the Act that it (judgement or order) is based upon or enunciates a principle of law or decides a question of law which is of first impression or distinguishes, overrules, reverses, or explains a previous decision. One has thus to presume that the Supreme Court's order in Rauf B. Kadri's has been published under the requisite certificate given by the Bench that it (order) qualified for publication as required by the Schedule to the 1875 Act. With the utmost respect, it is not clear what principle of law has been established by the majority statement in the order: "At the time of announcement of judgement in Court, however, it was a unanimous verdict of dismissal" and the minority statement therein: "As far as I remember it was a majority verdict at the time of announcement of judgment". The majority as well as minority statement could, in my view, be avoided without, in any manner, lessening the force of the opinions.