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

The judgment authored by Justice Munib Akhtar questioned where then did the ratio 4:3 claimed in the minority opinion come from? Then he himself answered 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.“

Implementation of Punjab election order not possible: CJP

A five-member bench, headed by Chief Justice Umar Ata Bandial, on 1st March with a 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, a nine-member bench was constituted comprising Chief Justice Umar Ata Bandial, Justice Ijazul 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 the merits. The order of the Court for that day was made by a 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 disassociated 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 and 28 and on 1st March decided the case with a 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.

The minority adopted an 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 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 of judges. However, the distinction is real and substantial.

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.

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 a bench actually did sit, hear and decide them.

The fact of the matter is of course that the matters were decided 3:2 as indicated in the short order because the bench constituted by the chief justice comprised of 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 (February 27 and 28) 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.

For, 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. They could not even have sat and heard the matters, let alone deciding them.

The judgment said that 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.

Copyright Business Recorder, 2023