Judges: 5 or 7? Days: 90 or more?

The CJP needs to wave his sword at every person or authority that has refused to implement the judgments

Aitzaz Ahsan April 09, 2023
The writer is a senior lawyer


In a time when tempers fly high sanity takes a backseat. When swords and sabers are drawn, the voices of reason are silenced. It is thus a mercy to see sanity and reason even where the battle is thick. The battle cry was given by the PML-N’s Information Minister demanding that the Chief Justice of Pakistan (CJP) resign. The demand was eagerly endorsed by her namesake and senior vice president of PML-N. The CJP appeared to them to be mortally wounded because these two ladies thought his opponents on the Court had defeated him 4:3. They smelled blood and wanted it to flow.

Thank God sanity and reason also had seats on the table. The entire issue was reviewed by the Core Committee of the Pakistan People’s Party under the joint chair of President Asif Ali Zardari and Chairman Bilawal Zardari Bhutto. A strong message went out from them. Mr Qamar Zaman Kaira, spokesman for the meeting, later told the press that the PPP did not support the demand for the CJP’s resignation nor the proposal to file references against the judges. There will obviously now be a cooler re-think of the matter by PML-N, JUI-F and other hawkish parties. When reflected upon with cool minds, PML-N may find that the facts are not what appear to it to be. The following are the main issues and their answers:

1. Five or seven judges:

i. Only five judges heard the final arguments on the final three days of hearing.

ii. The bench was admittedly ‘reconstituted’ as per the footnote in the note contributed by Mr Justice Mansoor Ali Shah.

iii. The opening sentence which the learned CJP read out on 1st March, 2023, in open court in the presence of all the 4 other judges was to the effect that “by a majority of 3:2 we …….”

iv. As such admittedly this was a decision of a five-member bench and not seven members.

2. The final judgement:

The final judgment is therefore, the judgment dated 1st March, 2023, and it is conclusive, requiring the holding of elections as mandated by the Constitution. No judge who was not a part of the reconstituted bench can subscribe his personal opinion to reverse a judgment by the Supreme Court.

3. Mr Justice Athar Minallah’s note:

i. The essence of the minority’s opinion (Mandokhel and Shah, JJ) is not that jurisdiction under Article 184(3) is unavailable altogether. Instead, they opine that it ought not to be resorted to in the circumstances of the case. Hence it is a matter only of propriety.

ii. Two other learned judges (Afridi and Minallah, JJ) have, while not being members of the bench that finally heard the arguments addressed to the Court, purported to contributed their opinions to the same effect.

iii. Justice Minallah critically points out in Para 19 of his note, “The premature and preemptive proceedings before this Court at this stage is likely to delay the enforcement of the judgment of the Lahore High Court, leading to infringement of the Constitution by exceeding the time frame prescribed ibid.”

In fact, he proceeds to claim rightly so that, “This [is] also obvious from the opinions of my learned brothers Syed Mansoor Ali Shah, Yahya Afridi, and Jamal Shah Mandokhel, JJ who have also dismissed the petition on this ground i.e. pendency of the same matter before the competent High Court.”

It is evident therefore, that all the above four justices agree that timeframe provided in the Constitution which is 90 days as per Articles 105(2) and 224 cannot be infringed.

4. In Article 105(2) it is provided that the election shall be held not later than 90 days from the date of dissolution of the assembly. Article 224 provided for this election within 90 days of the dissolution. Hence, Mr Justice Minallah, if he has to be counted on the bench, which the opposition does not admit, his quotation above shows that he unreservedly concedes that the 90-day period provided by the Constitution is mandatory and cannot be infringed. In fact, even a juridically approved extension beyond 90 days would be taking recourse to the Doctrine of Necessity, which he does not approve.

Moreover, Article 189 of the Constitution provides that “Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.” Article 190 states “All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.” Thus, Mr Justice Minallah’s voice adds to that of the three who were a 3:2 majority on 1st March, 2023. This was the final decision of the Supreme Court and awaits implementation for more than a month while a Lahore High Court judgment awaits implementation since 10th February. The CJP needs to wave his sword at every person or authority that has refused to implement either judgment of 10th February or 1st March. After the Justice Minallah note there is no scope now for any dithering or delay.

Published in The Express Tribune, April 9th, 2023.

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