Minority opinion ignites debate on binding nature of SC orders

KARACHI: The minority opinion in the SIC reserved seats case has raised concerns among legal experts over the suggestion that an order of the Supreme Court is not binding on other constitutional organs of the state.

On Saturday, the minority opinion in the SIC reserved seats case by Supreme Court justices Justice Amin-Ud-Din Khan and Justice Naeem Akhtar Afghan was released. The 30-page dissenting note says that the PTI should not be granted relief in the reserved seats case since it was neither a party before the court nor did it attempt to become one before the ECP. The note also highlights that the SIC did not participate in the February 8 nationwide polls as a political party, and — in what has been noted by legal experts in particular — the judges asserted that no constitutional body should be asked to take actions not allowed under the constitution.

Talking to The News, Supreme Court advocate Basil Nabi Malik says that the dissenting note “touches upon the majority decision’s expansive use of its powers in providing relief to parties who were technically not before it. The note sets up certain questions that will be in contention and hotly contested in the review -- but more interestingly, hits at the ability of the SC to afford such expansive relief in the first place”.

According to Malik, it would have been better rounded had the note also discussed Article 187 of the constitution, which allows the SC to do complete justice in a matter, and how the relief afforded by the majority opinion did or did not come with its purview.

For high court advocate and former faculty at LUMS Hassan Abdullah Niazi, the minority opinion “takes the narrowest possible reading of the law to deny the PTI’s claim”. Niazi is also concerned about how the “bulk of the dissent is spent on making a host of accusations towards the majority judges”, which he says are premature given that the detailed reasoning of 11 judges is not in yet.

But coming to the legalities, what Niazi finds interesting is that “not once does the note mention the ECP’s interpretation of the Supreme Court’s intra-party election decision which stripped the PTI of its electoral symbol and forced its candidates to contest elections as independents”.

Pointing to what almost all legal experts have found noteworthy about the minority opinion, Niazi says that the dissenting note “appears to imply that other state institutions are not bound by the majority decision, or that the independent candidates have somehow violated their oath. This is an extraordinary claim to make that has no basis in law. Every institution of the state is bound by the majority’s decision”.

Barrister Rida Hosain agrees on this. Calling this “the most disturbing aspect of the minority order”, she says that “compliance with Supreme Court orders is not a choice. Unfortunately, the minority effectively seems to invite defiance of the court. It is a recipe for complete chaos and lawlessness”.

Hosain also points out that the note does not address Article 17 of the constitution which enshrines the right to form and function as a political party. “Nor does the minority note mention fundamental democratic principles as per which the legislature must reflect the people’s will”.

There are takers of the minority opinion too though. According to Supreme Court advocate Hafiz Ahsaan Ahmad Khokhar, the minority judgment correctly held that the majority judgment disregards all procedural rules, substantive legal provisions, and the constitution.

Explaining why he thinks that any ruling by the court that is not required by the constitution is not enforceable by any other constitutional organ of the state, he says that the superstructure established by the majority’s short order for allocation of reserved seats to the PTI “does not in any way fall within the purview of the jurisdiction vested in this court or the constitution”. According to him, the Supreme Court can only interpret and “not delve into or read down the constitution”.

“The two members have correctly noted that the Supreme Court cannot suspend Section 104 of the Elections Act, 2017 and Articles 51, 106, and 63 of the constitution, and if doing so, the Supreme Court will go beyond the jurisdiction granted by Articles 175 and 185”, emphasises Khokhar.

Lawyer Abdul Moiz Jaferii is surprised at how the minority opinion points out that the 15-day limit to file a review has been frustrated by reasoning not being forthcoming from the majority. According to him, “never in the history of the Supreme Court have detailed reasons come within a review time limit for a full-court decision, and nor can it be expected that a court detail its reasons simply to allow for the right to a government review”.

Jaferii also disputes the idea that this would “render some rights infructuous”, adding that “true infructuousness occurs when a decision leads to an irreparable outcome before a review is heard. Like the January 13 decision to deprive the PTI of their symbol, a review to which is still pending. That is now truly infructuous. Yet no one seems to mind”.

The judgment is unconventional in some respects, explains Barrister Ali Tahir, first of which is that generally, a dissenting judgment comes after the majority order because a dissent is always consequential to the reasoning of the majority -- “but here the dissent has come first and it contains the reason as well, that the 15-day period was expiring and therefore the review petitions will become infructuous”. In Tahir’s opinion judges “at this stage shall not have or state any opinion about a review which is to come before them and it is judicially inappropriate to do so and even in a jurisdiction like ours this is the first time this has happened”.

Tahir too finds it most astonishing that the minority opinion has held that the majority judgment is not binding on the ECP. To him, “this clearly shows the fractures that have erupted in the judges of the Supreme Court and it is disheartening to note that we are now reaching the saturation point wherein a minority opinion states that the directions of the majority are not binding on institutions; this is dangerous”.