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July 26, 2017

Three-member bench’s decision will be final

ISLAMABAD: Efforts are in the works to set off another controversy by treating the minority judgments of Justice Asif Saeed Khosa and Justice Gulzar Ahmed in the Panama case as still relevant.

There is no confusion that the decision to be taken by the three-member special bench of the Supreme Court headed by Justice Ejaz Afzal Khan and comprising Justice Sheikh Azmat Saeed and Justice Ijazul Ahsan in this high-profile litigation will be final, conclusive and implementable. But still some circles keep claiming that the previous minority verdict of the two justices will have to be taken into consideration after the present bench will hand down its ruling.

Their argument is that if the special panel delivers, supposing, two to one decision in favour of Prime Minister Nawaz Sharif, the view of one dissenting judge from amongst the three will be bunched with the minority verdict of Justice Khosa and Justice Gulzar Ahmed, and thus the “final judgment” will be three to two “majority” ruling against the premier. Obviously, it will be a different story altogether if the special bench hands a unanimous judgment one way or the other.

By hammering their assertion, these quarters will attempt prolongation of the dispute on the Panama case simply for political reasons even after the judgment of the special bench will be out. However, in constitutional and legal terms any such row will be inconsequential as the judgment of the three-member bench is to prevail.

The frequently referred April 20 Order of the Court, which is operative part of the judgment and that has been implemented, also makes it clear that the ruling of the new panel will be relevant for all practical legal and constitutional purposes for being the final decision.

Paragraph five of the Order says: We would request the Hon’ble Chief Justice to constitute a Special Bench to ensure implementation of this judgment so that the investigation into the allegations may not be left in a blind alley.

Apparently, the words “this judgment” occurring in this portion means the majority decision because it was only this verdict for whose implementation Chief Justice Mian Saqib Nisar was requested to form a special bench. This implementation was only of the majority ruling because the dissenting judgment had been conclusive as they had disqualified Nawaz Sharif as the prime minister and had not desired any kind of further probe. This decision could not be enforced for being minority. It was only the majority judges which had directed further investigation into different aspects of the Panama case.

What does the Order contain whose implementation was wanted by it? It were thirteen questions that had been listed in it, which were to be looked into by the six-member Joint Investigation Team (JIT) formed by the special bench.

It doesn’t appear, even slightly, anywhere in the Order that the special panel will place its judgment before the five-member bench or the latter bench will assemble once again so that the “majority” judgment of the five justices is announced. It is beyond an iota of doubt that the previous panel became extinct after it had handed its judgment. The decision that holds field is the one delivered by the three judges. Dissenting judgments are not relied upon for being minority rulings.

After a lot of furor was created in the wake of the decision of the five-member bench,
Chief Justice Saqib Nisar while hearing a case had observed that world over such rulings are given but nowhere such an intense noise is fueled. It is also evident from the Order that the special bench has all the powers to take the ultimate decision without the involvement of the earlier panel.

In its opening, the Order said, “by a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, who have given separate declarations and directions, we (emphasis added to this word) hold that the questions . . . (which were listed). When the Order wrote the word “we”, it meant the three majority judges, who later formed the special bench, set up by the chief justice.

Then, the Order also said the JIT shall submit its periodical reports every two weeks before a bench of this court constituted. . . “A bench” undoubtedly meant the three-member special panel that was formed by the chief justice as requested in the Order.

The third point that unmistakably empowered the new bench to give the final decision emerged when the Order said that upon receipt of JIT reports, periodic and final, the (special) bench may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent No. 1 [the prime minister] and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.

At another place, the Order further armed the three-judge panel with the huge powers when it said that it is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No. 1 shall be considered and if found necessary for passing an appropriate order in this behalf, Nawaz Sharif or any other person may be summoned and examined.

In a nutshell, as per the Order the new bench has the great powers to take ultimate decisions -- filing of a reference against the prime minister and even deciding the matter of his disqualification without the involvement of the two dissenting judges of the earlier panel.

Courtesy www.thenews.com.pk

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