Claims that petitions decided by 4:3 is erroneous: SC

PUNJAB ELECTIONS.

 

ISLAMABAD   -   The Supreme Court of Pakistan Monday said the claims that petitions for holding of elections in Punjab were decided by 4:3 is erroneous.

The judgment au­thored by Justice Mu­nib Akhtar questioned that where then did the ratio 4:3 claim in the minority opin­ion come from? Then he himself answers it; “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. 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.”

A five-member bench, head by Chief Justice Umar Ata Bandial, on 1st March with the ma­jority of 3:2 (Justice Syed Mansoor Ali Shah and Jus­tice Jamal Khan Mandokha­il dissenting) held; “After consultation with the Elec­tion Commission the Presi­dent shall announce a date for the holding of the gen­eral election to the Punjab Assembly.”

Initially, the a nine-mem­ber bench was constitut­ed comprising Chief Justice Umar Ata Bandial, Justice Ijaz ul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Maza­har Ali Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah.

On 23.02.2023 no sub­stantive hearing took place and the matters were not taken up on meris. The or­der of the Court for that day was made by majori­ty, with four of the Judges (Justice Mansoor, Justice Yahya, Justice Jamal and Justice Athar) passed their own orders, while Jus­tice Ijaz and Justice Maza­har dissociated from the bench. Justice Yahya and Justice Athar dismissed the petitions. After that the Chief Justice constitut­ed a five-member Bench to hear the petitions. The bench heard the matter on February 27 & 28 and on 1st March decided the case with the majority 3:2.

The judgment said that these matters were placed before only two bench­es: initially a nine-member bench and then a five-mem­ber bench. At no time was any other bench of a differ­ent strength/composition ever constituted by the Chief Justice, nor did any other bench ever exist or sit in re­lation to these matters.

It added that the minority adopted unusual view that rather than these matters being disposed of in terms of the short order set out herein above by 3:2, they have been dismissed by 4:3. Reference in this regard may be made to paras 35 and 36 of the minority opinion, the section titled “Decision by 4-3 or 3-2 majority.

The SC said that 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 judgment said that the causes, ap­peals and matters in this Court are heard by Bench­es, and not Judges. At first sight some may find this formulation a bit surpris­ing since benches are, after all, comprised judges. How­ever, the distinction is real and substantial.

It said that a Bench is a body of Judges validly and properly constituted as such; it is not simply an ag­gregate of a given number of Judges. It is well settled that benches are consti­tuted by the Chief Justice alone, who is the master of the roster. Benches can­not self-constitute, and once properly constituted cannot self-propagate or self-perpetuate (see para 33 thereof). It is the Bench, as properly constituted, that defines and delineates the Court for the purpose of any matter, appeal or cause and judgment therein, and not simply any agglomera­tion of Judges.

It continued 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,” said the judgment.