Dissent and recusal

There's been a mighty odd development in a case before the Supreme Court of Pakistan. A challenge to three military court convictions was referred to a three-judge panel. All three judges happened to have dissented in the 2015 case that upheld the 21st Amendment to the Constitution, which permitted military courts to try certain offenses by civilians. This article tells the tale:

The bench, headed by Justice Asif Saeed Khosa, was hearing a petition filed by three suspects Nadeem Abbas, Jehangir Haider and Zeeshan, who were handed over death sentence by a military court in Quetta in August 2016 and are locked up in the Mach prison. 

The three judges, including Justice Dost Muhammad and Justice Qazi Faez Isa, said that they cannot take up the case as they had dissented in the verdict of the case against military courts in 2015. 

The Supreme Court on August 5, 2015 had rejected all applications challenging the 18th and 21st Constitutional amendments, ruling in favour of the establishment of military courts in the country. 

Justice Khosa while explaining the reason for not taking the case said that the three judges had written a dissenting note in the military courts verdict, which had termed the establishment of these courts in conflict of the Constitution. This is why none of us would want to hear the case, the judge said.

The panel has returned the case to the Chief Justice for assignment to other justices. If stare decisis has any force, the 2015 -- right or wrong -- would govern unless overturned by the full court. It is not at all clear why the assigned panel did not just decide the cases and, in the process, express whatever misgivings they might have had. The mere fact that they were outvoted two years ago should not have caused them to recuse.

Readers in Pakistan are invited to comment or clarify.