ISLAMABAD: Casting the controversy of minority decision aside, Justice Munib Akhtar in a much-awaited judgement on the Punjab and Khyber Pakhtunkhwa (KP) elections on Monday, threw his weight behind both nine-member and five-member benches constituted and reconstituted by Chief Justice of Pakistan Umar Ata Bandial — one as master of the roster and the other in response to a ‘judicial order’.

In his 43-page judgement, Justice Akhtar dec­l­a­red that the Feb 27 order by the nine-member ben­ch for reconstitution of the ben­ch was a ‘judicial ord­er’ and not an ‘administrative order’, marking a barrier between the two validly constituted benches.

He highlighted that Justice Yahya Afridi and Justice Athar Minallah, who dismissed these matters on the very first day, as well as Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhel, who were part of the five-member bench, were also signatories as members of the nine-member bench to the judicial order.

Through its Feb 27 order, CJP Bandial after deliberations that lasted 90 minutes in an adjacent ante room had split the nine-judge bench into five-member bench to continue hearing the suo motu proceeding regarding delay in the election dates for the two provincial assemblies.

Signed by nine judges, the Feb 27 order stated that the matter was referred back to the CJP keeping in view the Feb 23 order and additional notes attached by Justice Shah, Justice Afridi, Justice Mandokhel and Justice Minallah, as well as discussion/deliberations made in the ante-room of the top court.

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Later on March 27, Justice Shah and Justice Mandokhel in their detailed reasoning explained that the SC by a majority of four to three and not three to two had dismissed on March 1 the suo motu hearing on polls delay in Punjab and KP and therefore the same should be considered as the “Order of the Court”.

Both judges had also questioned CJP’s ‘discretion’ in regulating constitution of the benches and highlighted the need of revisiting the power of ‘one-man show’ enjoyed by the CJP office to ensure public trust and confidence in the judiciary.

Judicial vs administrative order

In the judgement released on Monday, Justice Akhtar elaborated that the initial nine-member bench was constituted by CJP Bandial as master of the roster since the matters were placed before that bench on Feb 23 and 24.

It is apparent that the minority opinion does not dispute this, and also accepts that two members of that bench (Justice Yahya Afridi and Justice Athar Minallah) dismissed these matters on the very first day, he noted. Thereafter, the nine members of the bench unanimously made an “order” by referring the matter to CJP “for reconstitution of the bench”.

This Feb 27 order was not and could not be an administrative order, rather a judicial order made by the nine-member bench, Justice Akhtar noted, explaining that the reconstitution of the bench by the CJP to the present five-member bench was in response to that judicial order.

The judicial order constituted a decisive break — indeed, a barrier — between the two validly constituted benches, Justice Akhtar observed, rejecting the claim that the matters stood dismissed in the ‘self-computed’ ratio of four to three as ‘erroneous’.

It is noteworthy, he said, that both Justice Afridi and Justice Minallah were signatories as members of the nine-member bench to the Feb 27 judicial order. Indeed, he added, two other colleagues Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhel — now in minority in the five-judge bench — were also signatories in same manner. “The failure of the minority opinion to notice and take it into account is therefore, and with great respect, implausible,” the judgement stated.

Fresh start

It was neither a matter of administrative convenience nor facilitation of the “remaining five members of the bench”, Justice Akhtar noted. There was no such “further” hearing, nor any “remaining five members”, because the earlier constituted nine-judge bench had ceased to exist, Justice Akhtar observed.

Insofar as Justice Afridi and Justice Minallah were concerned, the unanimous request made for the reconstitution of the bench was in line with their orders of dismissal on Feb 23, the judgement explained. It said they had themselves accepted that their continued “retention” on the “present bench” may be of no avail, and had left the matter to the CJP. The judges believed 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? This, with great respect, is the central conundrum that lies at the heart of the reasoning adopted in the minority opinion, Justice Akhtar reasoned.

Numbers game

“Where did the ratio 4:3 claimed in the minority opinion come from?” he wondered and then went on to explain that it could only have come about by taking two judges from the initial, validly constituted nine-member bench and all other judges of the subsequent, validly constituted five-member bench, and melding this number into a seven-member “bench”.

“This seven-member bench 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,” Justice Akhtar emphasised.

Thus by focussing on the number of judges and not the constitution of the benches, the minority opinion sought to breach the “barrier” posed by the unanimous judicial order of Feb 27 in which the matter was referred back to CJP Bandial for the reconstitution of the bench.

Published in Dawn, June 13th, 2023