Judicial overreach or justice served? Legal experts on SC verdict

KARACHI: The Supreme Court’s Friday verdict in the reserved seats case has rectified the ECP’s errors, is a corrective measure to prevent political victimization, and respects the will of the voters, say legal experts. Conversely, some lawyers argue that the verdict is controversial and complicates matters since the PTI was not the petitioner but has somehow become the main subject of the verdict.

In a significant win for Imran Khan and the PTI, the Supreme Court on Friday overturned the Peshawar High Court’s decision denying reserved seats to the PTI-backed Sunni Ittehad Council (SIC). A 13-member bench, led by Chief Justice Qazi Faez Isa, ruled that the PTI is a legitimate political party regardless of its electoral symbol and that the ECP’s decision to deny reserved seats to the SIC was unconstitutional.

Earlier this year, PTI-backed independent candidates had joined SIC after winning the February 8 elections. However, in March, the ECP had denied SIC the reserved seats quota, distributing them to other parties instead.

The verdict has resulted in varying reactions, though the majority of legal experts are erring on the side of appreciating the apex court’s decision to award the PTI its share of reserved seats. There is a fair share of naysayers too, though.

Right after the SC verdict on Friday, former attorney general for Pakistan Ashtar Ausaf spoke with Geo News and reminded that the SIC was the party that had moved the courts and the ECP, adding that the “decision wasn’t in favour of the SIC, so will the SIC now file a review or was it a proxy?” Since the PTI wasn’t the one making the case in court, Ashtar said that the verdict had complicated the issue further.

However, high court advocate and former faculty at LUMS Hassan Abdullah Niazi does not see the verdict in that light. He tells The News that “constitutional cases like this are about balancing the text of the law with the spirit of democracy. In that sense, I believe the majority’s decision is the most balanced and reasonable conclusion to rectify the ECP’s errors and uphold the will of millions of voters in favour of a political party.”

Niazi says that this is not just about the technicalities but that this case “also involved the potential for a constitutional amendment with deep repercussions for our judicial system. History will judge the judiciary’s response through this lens. By rejecting the attempt to take the PTI’s reserved seats, the Supreme Court has stopped a government with a shaky mandate from tinkering with the constitution, and shown that it could not be swayed by promises of extensions in tenure.”

Lawyer Abdul Moiz Jaferii is on the same page, saying that the Supreme Court has “looked beyond the technical traps that were set by the ECP. It has been clear to everyone that there was a game afoot. The judges decided today that they would not be complicit In the technical trappings of the form and instead, would look at the substance of the process and the malice with which the ECP led the PTI to slaughter.”

Put simply, says Barrister Rida Hosain, “the majority decision is entirely correct and preserves the people’s will”, echoing Supreme Court advocate Basil Nabi Malik’s summation that the verdict “attempts to undo an injustice that was widely perceived to have resulted from the political victimization of the PTI”.

But critics are already arguing that the SC has gone beyond what was asked of it. Malik explains the nuances: “Although it may reasonably be argued that the SC strayed beyond the scope of the subject matter before it, Article 187 of the constitution, which allows the SC to do complete justice, provides a wide scope of powers to the apex court. Hence, such exercise of power cannot be outright dismissed as a breach of its jurisdiction.”

Responding to the same concerns, Barrister Rida says that courts “do not interpret the constitution in a vacuum. They examine the facts before them and have the power to do complete justice under Article 187. The injustice in this case was created by the ECP.”

This does not mean the verdict was not surprising, though. Says Basil Nabi Malik: “Typically, the SC does not go beyond what is before it. In this case, it has clearly done so, and that too in favour of a party that was effectively not before it.” He adds that this can be explained via the Article 187 powers of the court which he feels the SC could have relied on for this decision. The recognition afforded to the PTI as a political party, he adds, “is in consonance with the constitution, as well as settled principles of law”.

Advocate of the Supreme Court Hafiz Ahsan Ahmad Khokhar offers a different point of view. To him, the court exceeded its jurisdiction and the mandate given by Article 185 of the constitution. According to Khokhar, “the ruling is not in line with constitutional and legal provisions”. He too brings up the PTI’s addition to the judgment when the party wasn’t even part of the process.

Law Minister Azam Nazeer Tarar spoke with the media post the SC verdict and also brought up the confusion regarding the fact that the SIC had claimed the reserved seats and not the PTI. Saying that “there are constitutional and legal flaws in this verdict that will remain under discussion”, the law minister pointed out that “ there was no mention of the PTI in the PHC verdict and the law says that no judgment can be given against someone without hearing them”.

For Niazi, the SC declaring that the PTI remains a party is not surprising but a correct reading of the law “in view of Article 17 of the constitution, which guarantees certain rights to political parties. As for giving these seats to the PTI (rather than the SIC), my view is that once the majority declared the ECP’s decision to deem PTI candidates as independents unconstitutional, it meant the entire chain of subsequent events had to be corrected, which included returning the PTI its mandate. It is possible the majority looked to its powers under Article 187.” What happens now after the verdict? Does this case open up a different set of precedents? Does it affect events that have already taken place?

Jaferii says that “the most important effect will be on the Senate elections and how they were held with an inaccurately formed electorate” while Niazi says that it should be interesting to see how the ECP and the government react. He elaborates: “41 independent candidates have the opportunity to file a statement of affiliation with the PTI within 15 days of the court’s order. The PTI must then confirm their affiliation, followed by the ECP issuing a list of returned candidates and filing a compliance report with the Supreme Court. If the events of this year are any indication, this process is unlikely to be free of controversy.”