SC says 4:3 verdict claims ‘erroneous’

The apex court on Monday issued a detailed verdict on the polls delay case, delineating why the claim that the petitions were rejected by a vote of four to three was “erroneous” -- a verdict that highlights divisions in the Supreme Court.

Two SC judges -- Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi -- on February 16 had requested Chief Justice of Pakistan (CJP) Umar Ata Bandial to take suo motu notice of delay in announcement of polls in Punjab and Khyber Pakhtunkhwa (K-P).

Subsequently, the chief justice started suo motu proceedings by forming a nine-judge bench to hear the matter.
The CJP then reconstituted a five-judge bench, which on March 1 issued a split 3-2 verdict, empowering President Arif Alvi to announce the date of the Punjab polls, while directing the K-P governor to set the polls date for the provincial assembly in consultation with the Election Commission of Pakistan (ECP).

Three judges, who were part of the 9-judge bench—Justice Athar Minallah, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi—however later stated in their notes that the petitions were rejected by a vote of 4:3, sparking a controversy.

In a 43-page detailed judgement authored by Justice Munib Akhtar, the three-judge bench that endorsed President Alvi’s decision to announce polls in Punjab on Monday said there was need to know where did the ratio 4:3 claimed in the minority opinion come from.

“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.”
It said 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 has sought to breach the barrier posed by the unanimous judicial order passerby by the first nine-judge bench on February 27
“We should do so on account of what—with great respect—can only be described as an unusual view adopted by the minority 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.”

It said since the minority opinion has purported to reverse the very outcome of these matters, it is something that should be examined. “In doing so, we preface what is about to be said by stating that we act with the greatest respect, and a heavy heart."

The judgement noted that benches cannot self-constitute, and once properly constituted cannot self-propagate or self-perpetuate.

It is a 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."

The court noted that 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 Hon’ble Chief Justice comprised five members, who sat as said bench and heard the matters over two days and then decided the same.”

It said at no stage over those two days 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 and 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 noted that the nine-judge bench’s February 27 order was not and could not be an administrative order. It was a judicial order, made by the nine-judge bench.

"The reconstitution of the bench by the Hon’ble Chief Justice, ie, the constitution of the present five-member bench, was in response to this judicial order.

“Unfortunately, it appears that this judicial order has not been noticed in the minority opinion. The judicial order constituted a decisive break indeed, a barrier between the two validly constituted benches.”

It said on the prior side of it lay the initial, validly constituted nine-judge bench of which Justice Yahya Afridi and Justice Athar Minallah were members. On the latter side lay the subsequent, validly constituted five-judge bench of which they were not members.

President setting election date

The judgment noted that the president, while setting the date for the general election under section 57(1) of the Elections Act, 2017 does not act on advice but rather on his own.
"In order to understand why this is so, we begin by looking at Article 48. Clause (1) provides that the president, in exercise of his functions, is to act on and in accordance with the advice of the cabinet or the prime minister, as the case may be.

"The proviso to this clause allows for the president to require reconsideration of any advice tendered within fifteen days thereof and goes on to provide that when the advice is tendered again, he is to act on it within ten days thereof.

Thus, if the proviso is applicable to a given situation, it could be up to almost a month before the advice is acted upon. Clause (2) of Article 48 provides that notwithstanding anything contained in clause (1) the president shall act in his discretion in respect of any matter “in respect of which he is empowered by the Constitution to do so”.
These provisions have now to be examined in the specific context of appointing the date for a general election. The judgment further noted that the application of Article 48(2) is not necessarily limited only to those constitutional provisions where the word “discretion” is expressly used.

"There are provisions where the term is not used and yet the application thereof, on any sensible approach, is meaningful only if the president is to act on his own and not on advice.
“For example, consider Article 91(7). The term “discretion” is not used therein. It empowers the president to ask the prime minister to take a vote of confidence from the National Assembly.’
But the power can only be exercised if the president is satisfied that the “prime minister does not command the confidence of the majority of the members of the National Assembly”.
It asked: Is the president to act on advice here?

"A moment’s reflection will show that that cannot be so. No prime minister, who can in any case take a vote of confidence from the assembly at any time, would sensibly advice the president to take recourse to Article 91(7).
To require that this provision can only be invoked on advice would reduce it to a dead letter. This is therefore a provision where, even though the term “discretion” is not used, the president is empowered to act on his own.
Another example in this regard is Article 75(1) which allows the president to return a bill—other than a money bill—to parliament for reconsideration. Again, the term “discretion” is not used here.

Now, it is an important constitutional convention that the government of the day must at all times command the confidence of the majority of the National Assembly. Realistically therefore, a bill can hardly pass the houses of parliament without the approval of the government.

"If the power under Article 75(1) is conditional upon advice, then it could (or would) hardly ever be invoked. It would, for all practical purposes, be a dead letter. It makes sense only if it empowers the president to act on his own even though the term “discretion” is not used".

"We pause here to note that the differences between the president and prime minister as to the date would be genuine and the differing views in this regard be held in good faith. The effect however could be disastrous from the perspective of adhering to the constitutional time limits".

"The president is not a mere mouthpiece for anyone else. He is acting on his own, and discharging a constitutional responsibility. The “announcement” is not a mere formality but a substantive act.
“In the context of the general elections required by the Constitution, it must have, and be given, real meaning, content and effect. In our view, it can mean nothing less than the appointment of the date for the general election," said the judgement.