Detailed judgment on Punjab, KP polls 4:3 verdict claim invalid: SC

ISLAMABAD: The Supreme Court Monday declared as invalid the claim of minority opinion by a ratio of 4:3 on the holding of elections in Punjab and Khyber Pakhtunkhwa (KP).

The court held that since there was no seven-member bench, hence the claim that these matters stood dismissed in the self-computed ratio “4:3” was erroneous”.

A five-member bench of the apex court — headed by Chief Justice of Pakistan Justice Umer Ata Bandial — issued the detailed judgment on the two petitions in the suo motu case regarding the announcement of the date for polls to the Punjab and KP assemblies.

The other members of the bench were Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhel and Justice Muhammad Ali Mazhar.

“Where then did the ratio 4:3 claimed in the minority opinion come from? With great respect, it could only have come about by taking two learned judges from the initial, validly constituted nine-member bench and all the other judges of the subsequent, validly constituted five-member bench, and melding this number into a seven-member “bench” that was never constituted, and which never existed in law or in fact”, says the detailed judgment.

The 43-page detailed judgment authored by Justice Munib Akhtar held that since there was never ever any such Bench, there could not, ipso facto, be any decision in the ratio “4:3”.

By focusing on the number of judges, simpliciter and not the constitution of benches, the minority opinion (with great respect) has sought to breach the barrier posed by the unanimous judicial order of 27.02.2023.

“That is not possible. Therefore, with great respect, the claim that these matters stood dismissed in the self-computed ratio “4:3” is erroneous”, the court held.

On March 01, 2023, the five member larger bench of the apex court by a majority 3-2 had ordered elections to the Punjab and KP assemblies within 90 days and directed all the executive authorities in the federation and the provinces to assist the Election Commission of Pakistan (ECP) in the discharge of its functions.

The court declared as constitutionally competent the order of the president dated 20.02.2023 with regard to Punjab Assembly but termed constitutionally invalid the order pertaining to the KP Assembly and set it aside.

The court held that the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the KP governor.

Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhel while dissenting with the majority judgment held that the suo motu proceedings in the facts and circumstances of the case were wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution, besides being initiated with undue haste.

The majority verdict given by Chief Justice Umer Ata Bandial, Justice Munib Akhtar and Justice Muhammad Ali Mazhar held that parliamentary democracy was one of the salient features of the Constitution.

The court had held that there could be no parliamentary democracy without Parliament or the provincial assemblies and there could be neither Parliament nor the provincial assemblies without the holding of general elections as envisaged, required and mandated by and under the Constitution and in accordance therewith.

The court had announced in its short order that elections, and the periodic holding of elections, therefore underpin the very fabric of the Constitution.

In the detailed judgment, the court noted that a nine-member bench was initially constituted by the chief justice as master of the roster adding that the matters were placed before that bench on 23.02.2023 and 24.02.2023.

“It is apparent that the minority opinion does not dispute this, and also accepts that two of the learned members of that bench (being Yahya Afridi and Athar Minallah, JJ) dismissed these matters on the very first day”, says the judgment.

Thereafter, the detailed judgment held that the nine members of the Bench unanimously made an order, referring the matter to the chief justice “for reconstitution of the Bench”.

“This order, of 27.02.2023, was not and could not be an administrative order but a judicial order, made by the nine-member Bench”, the court held adding that the reconstitution of the bench by the chief justice, i.e., the constitution of the present five-member bench, was in response to this judicial order.

Unfortunately, it appears that this judicial order has not been noticed in the minority opinion”, says the judgment adding that the judicial order constituted a decisive break— indeed, a barrier—between the two validly constituted Benches.

On the prior side of it lay the initial, validly constituted nine-member bench of which alone the learned Yahya Afridi and Athar Minallah, JJ were members”, the court noted in the detailed judgment.

On the latter side lay the subsequent, validly constituted five-member bench of which, respectfully, they were not”, the judgment maintained.

The court held that the minority opinion appears to take exception to what is regarded as the “removal” of Yahya Afridi and Athar Minallah, JJ from the Bench without their consent, which as per the opinion “is not permissible under the law and not within the powers of the Chief Justice”

It is stated in the said para as, “The reconstitution of the bench was simply an administrative act to facilitate the further hearing of the case by the remaining five members of the Bench and could not nullify or brush aside the judicial decisions given by the two Judges in this case [i.e., Yahya Afridi and Athar Minallah, JJ], which have to be counted when the matter is finally concluded.” With great respect, the foregoing extracts serve only to highlight the point on which we, with respect, cannot agree.

It is to be noted that both Yahya Afridi and Athar Minallah, JJ were signatories, as members of the nine-member Bench, to the judicial order of 27.02.2023. Indeed, our two learned colleagues now in minority were also signatories thereto, in like manner”, says the judgment.

The failure of the minority opinion to notice this order in and take it into account is therefore, and with great respect, implausible”, the judgment held.

The court noted that reconstitution of the bench by the chief justice was only subsequent to, and consequent upon, the judicial order of 27.02.2023.

“It was not simply a matter of administrative convenience or facilitation of the “remaining five members of the bench” for “further hearing of the case”, says the detailed judgment.

The court held that there was no such “further” hearing, nor any “remaining five members”, because the earlier constituted Bench had ceased to exist adding that the hearings on 27.02.2023 and 28.02.2023 were before another Bench, subsequently constituted.

Furthermore, insofar as Yahya Afridi and Athar Minallah, JJ were concerned, the unanimous request made for the reconstitution of bench was in line with their orders of dismissal on 23.02.2023. (That dismissal did not of course result in the matters being decided since it was 7:2.)”, says the judgment.

The court noted that they had themselves accepted that their continued “retention” on the “present bench” might be of no avail, and had left the matter to the chief justice”, the detailed judgment further noted.

The judgment maintained that the bench to which the learned Judges referred was of course the nine-member bench adding that the learned judges themselves believed that they had, on account of their orders of dismissal, nothing more to contribute to the bench of which they were actually members.

“How then could anything said or done by them in such capacity be “counted” or “reckoned” when determining the proceedings before the reconstituted bench of which they were not members”, the court questioned.

This, with great respect, is the central conundrum that lies at the heart of the reasoning adopted in the minority opinion.

The court held that one obvious corollary of the foregoing is that if a cause, appeal or matter is not decided unanimously by a bench but by way of a division among the members thereof, the ratio (and hence the outcome of the matter) is determined only by the bench as constituted. Putting this more concretely, if a matter is said to be decided by the bench “split” in the ratio A:B, A plus B must be (and can necessarily only be) the total of the members of the Bench as constituted, and not otherwise.

“Thus, if the minority opinion were correct that these matters were decided 4:3, it must be shown that a seven-member bench was properly constituted to hear the same, and that such bench actually did sit, hear and decide them”, says the detailed judgment

The court held that the fact of the matter is of course that the matters were decided 3:2 as indicated in the short order reproduced above because the bench constituted by the chief justice comprised five members, who sat as the said bench and heard the matters over two days and then decided the same.

“We may note that at no stage over those two days was any claim made by any person, including any of the learned counsel who appeared before the court nor, indeed, by any member of the bench that the judges sitting and hearing the matters were not the properly constituted bench, in that it had two additional members who were absent or missing”, the court held.

Had that been the case (which it emphatically was not), then the five judges who did sit and hear the matters would not have been the bench constituted for the purpose”, the detailed judgment held adding that they could not even have sat and heard the matters, let alone deciding them.

For convenience, we set out below the relevant portion of what the minority opinion claims (italics in original; underlining added):

“We believed that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions, had become the Order of the Court by a majority of 4-3 while our other three learned brothers held the view that their order was the order of the court by a majority of 3-2.

Because of this difference of opinion, the order of the court, which is ordinarily formulated by the head of the bench could not be issued. We are of considered view that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions is the order of the court with a majority of 4 to 3, binding upon all the concerned.

The genesis of the above view appears to lie in the third footnote of the short order dated 01.03.2023 made by our two learned colleagues in dissent. That footnote appeared in para 2 of their short order. The said para and the footnote are set out below (original italicized; the asterisk marks the footnote): “2. We, therefore, agree with the orders dated 23.02.2023 passed by our learned brothers, Yahya Afridi and Athar Minallah, JJ[*]., and dismiss the present constitution petitions and drop the suo motu proceedings.” “[*] Initially a nine member bench heard this matter.

The aforementioned two Judges decided the matter by dismissing the said petitions”, says the judgment adding that later on two other Judges disassociated themselves from the Bench for personal reasons and as the two aforementioned judges had dismissed the matter, the Bench was reconstituted into a five member bench vide order dated 27.02.2023.

The court held that the decisions of the aforementioned two hon’ble judges dated 23.2.2023 form part of the record of this case.”

The court also ruled, “The president, in exercising the power conferred by S. 57(1) and thereby discharging a constitutional obligation and responsibility is empowered to act on his own and is not bound by advice in the constitutional sense.”