Scathing note torpedoes CJP's order in election suo motu.

ISLAMABAD -- Two judges of the apex court on Monday cast doubt on the judgement handed down in the March 1 suo motu regarding elections in Khyber Pakhtunkhwa and Punjab, saying that the proceedings stood dismissed by a majority of 4-3, and contended that the chief justice of Pakistan (CJP) does not have the power to restructure benches without the consent of the respective judges.

The 28-page 'order of the court' came in stark contrast to the order issued earlier, wherein the top court ruled in a 3-2 verdict that elections in Khyber Pakhtunkhwa and Punjab should be held within 90 days.

The ruling sparked a debate on whether the decision is considered a verdict by a majority of three to two or by four to three, with the government insisting on the latter.

The recent order, authored by Justice Syed Mansoor Ali Shah and Justice Jamal Khan MandoAkhail, seems to address this controversy by stating that once 'the cause list [is] issued and the bench is assembled for hearing cases, the chief justice cannot reconstitute the bench...'

'We are of the considered view that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions is the Order of the Court with a majority of 4 to 3, binding upon all the concerned.'

'Disagreement' not grounds for redoing bench

In order to corroborate this, Justice Shah referred to the administrative powers enjoyed by the CJP in reconstituting a bench. Once the bench is constituted, a cause list is issued and the bench starts hearing the cases, the matter regarding the constitution of the bench goes outside the pale of administrative powers of the CJP and rests on the judicial side, the ruling said, adding that any member of the bench may, however, recuse from the bench. The bench may also be reconstituted if it is against the rules and requires a three-member bench instead of two, the ruling added.

'In the absence of a recusal... any amount of disagreement amongst the members of the bench... cannot form a valid ground for reconstitution of the bench,' it said, adding that reconstitution of a bench while hearing a case, in the absence of any recusal would amount to stifling the independent view of the judge.

'After having made a final decision on the matter at an early stage of the proceedings of a case, the non-sitting of a judge in the later proceedings does not amount to his recusal...