In a detailed, 43-page judgment on the delay in polls for Punjab and Khyber-Pakhtunkhwa, Justice Munib Akhtar on Monday ruled the Feb. 27 order of a nine-member bench for its reconstitution was a “judicial order” and not “administrative,” thereby nullifying controversy over whether the final ruling was issued by a 3-2 verdict or set aside by a 4:3 bench.
Initially, the suo motu case over the delay in polls was taken up by a nine-member bench. Subsequently, two judges recused themselves while two others were removed by Chief Justice of Pakistan (CJP) Umar Ata Bandial. The remaining five judges then took up the case, with Justice Akhtar maintaining the CJP had reconstituted it as master of the roster. In his order, Justice Akhtar noted that Justices Yahya Afridi and Athar Minallah—who had both said the case should be dismissed—and Justices Mansoor Ali Shah and Jamal Khan Mandokhel—who remained in the five-member bench—had all been signatories as members of the nine-member bench to the judicial order.
Subsequently, on March 27, Justices Shah and Mandokhel had issued notes explaining that the bench had dismissed the suo motu hearing by a majority of four to three and not three to two, and therefore the former should be considered as the “Order of the Court.” Both judges had also raised concerns over the CJP’s unilateral authority to form benches and called for revisiting this to restore public trust in the judiciary.
In the judgment, Justice Akhtar said the minority opinion did not dispute that CJP Bandial, as master of the roster, had constituted the nine-member bench. After Justices Afridi and Minallah had dismissed these matters on the first day, he said, the nine members of the bench had unanimously made an “order” by referring the matter to CJP “for reconstitution of the bench.” This, he wrote, could not be considered an administrative order, adding that the reconstitution of the five-member bench by the CJP was a response to that judicial order.
He noted that both Justices Afridi and Minallah were signatories to the Feb. 27 order as members of the nine-member bench, as were Justices Shah and Mandokhel. “The failure of the minority opinion to notice and take it into account is therefore, and with great respect, implausible,” he wrote. He further maintained that the “break” recorded between the two separate benches made it clear that the nine-judge bench had ceased to exist when the five-member one was formed.
According to the judgment, Justices Afridi and Minallah had themselves accepted that their continued presence on the bench would not serve any purpose, as they had already dismissed the case on Feb. 23. As such, it said, nothing they said or did could be “counted” or “reckoned” when determining the proceedings before the reconstituted bench of which they were not members. “Where did the ratio 4:3 claimed in the minority opinion come from?” wrote Justice Akhtar, stating that this could only be achieved if only two judges were deemed to have been removed from the nine-member bench while they were melded with the reconstituted five-member bench. “This seven-member bench was never constituted, and which never existed in law or in fact,” he wrote. “Since there was never ever any such bench, there could not, ipso facto, be any decision in the ratio 4:3,” he added.
Presidential role
The verdict also ruled that the president was not bound to act on the advice of the prime minister for fixing a date for the elections in the country. “The president, in exercising the power conferred by Section 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,” it ruled, referring to the government’s rejection of President Arif Alvi unilaterally announcing April 9 as the date for elections in KP and Punjab.
The ruling further observed that the president was not a mere mouthpiece and could act on his own to discharge his constitutional responsibility. “The ‘announcement’ is not a mere formality but a substantive act,” it said of Alvi’s notification of a date for polls. “The order of the president dated 20.02.2023 is constitutionally competent and subject to what is observed below, it is hereby affirmed insofar as it applies to the Punjab Assembly; but the same is constitutionally invalid insofar as it applies to the KP Assembly and is therefore hereby set aside. It also follows that the governor of KP province, inasmuch as he has not appointed a date for the holding of the general election to the Assembly of that province, is in breach of his constitutional responsibility,” it added.