Detailed judgment issued in reserved seats case

ISLAMABAD: The Supreme Court (SC) majority detailed judgement in the reserved seats case, released on Monday, expressed concerns over the observations, made by two judges – Justice Aminuddin Khan and Justice Naeem Akhatr Afghan – in the minority judgment.

The 70-page judgment, penned by Justice Mansoor Ali Shah, comes days after National Assembly Speaker Ayaz Sadiq had written to the Election Commission of Pakistan (ECP) saying that the apex court’s July 12 short order was “incapable of implementation” after the amendments to Election Act 2017.

Elaborating on a party’s eligibility to contest the polls, the detailed judgment stresses that the lack of an electoral symbol does not affect its constitutional right to take part in elections.“The Constitution and the law do not prevent any political party from fielding candidates,” the order says while referring to the ECP’s decision which had revokedthe PTI’s “bat” symbol over apparent irregularities in its intra-party polls.

The PTI is a political party and won seats in the national and provincial legislatures in the general elections, the court remarked, while directing the country’s top electoral body to notify the former ruling party’s members on the reserved seats.“The ECP’s March 1 decision is contradictory to the Constitution and has no legal value,” the apex court said while referring to the body’s decision wherein it had declined the Sunni Ittehad Council’s (SIC) plea for allocation of reserved seats and had instead decided to give them to other political parties on the principle of proportional representation.

Additionally, the court also declared the returning officers’ (ROs) act of mentioning PTI candidates as independent candidates in Form-33 “unconstitutional and unlawful”.Today’s detailed judgment also accentuated the electoral body’s failure to fulfil its role as a fundamental “guarantor institution” of democratic processes.

“The Commission must therefore fully recognise its constitutional position and the critical role it plays in a democracy while performing its duty to conduct free and fair elections. As a central pillar of democratic electoral processes, the Commission, in its role as a guarantor institution and impartial steward, is tasked with ensuring the transparency and fairness of elections to maintain public trust in the electoral system,” reads the order.

Furthermore, Justice Shah’s verdict points out that the top court was “surprised” how the ECP behaved as a “primary contesting party against SIC and PTI”.“The function performed by the Commission in the present case was, therefore, quasi-judicial,” it said.

“In the present case, the Commission was a proper party to assist the court ineffectually and completely adjudicating upon and settling all the questions involved in the case. It should have acted in this manner, not as a primary contesting party,” the court further remarked.

When ECP makes significant mistakes impacting the electoral process, judicial intervention becomes necessary, the court noted.‘Not an ordinary case, court not bound by technicalities’

Addressing the issue of the PTI being a party to the case, the judgment said that although as per the normal procedure of civil cases, an application for impleadment is first decided and the applicant formally made a party to the case, before granting him any relief in the case.

However, the said case, the court added, was not an ordinary one and revolved around democracy and the fundamental right of the people (the electorate) to choose their representatives.

“The procedural formality of first accepting PTI’s application and then granting it the relief does not carry much weight where the court’s concern is the protection of the right to vote of the people (the electorate) guaranteed under Articles 17(2) and 19 of the Constitution, more than the right of any political party — whether it be SIC or PTI or any other party,” said the detailed verdict.

“[...] this court is not handicapped by any technicality or rule of practice or procedure, nor is the exercise of this power by the court dependent on an application by a party,” it added.It is to be noted that the incumbent ruling coalition had reacted strongly to the July short order saying that the PTI wasn’t even party to the case but was given relief nevertheless.

The aforesaid bid of the detailed judgment also seemingly addresses arguments raised by Justices Amin-Ud-Din Khan and Naeem Akhtar Afghan in their dissenting note issued in August wherein they had opined that the PTI was neither before the court nor tried to become a party before the ECP.

Referring to the aforesaid judges’ dissenting note, the detailed judgment said that their observations did not “behove the judges of the SC” as they had remarked that the July 12 verdict was not in accordance with the Constitution and the majority judges had ignored and disregarded its mandate.

Noting that the majority verdict judges do not have any issues with their colleagues expressing their views and differing on issues, the judgment said that the manner in which the disagreement was expressed “fell short of the courtesy and restraint required of the judges of the superior courts”.

“What is more disquieting is that, through the said observations, they appear to have gone beyond the parameters of propriety by warning the 39 plus 41 (80) returned candidates and urging the Commission not to comply with the majority order, which is the decision of a thirteen-member Full Court Bench of this Court. Such observations undermine the integrity of the highest institution of justice in the country and seem to constitute an attempt to obstruct the process of the Court and the administration of justice,” reads the verdict penned by Justice Shah.

Elaborating on the previously issued short order, the court said today that a political party’s failure to comply with the provisions of Section 209 of the Elections Act relating to its intra-party elections, does not de-enlist it as a political entity.

Noting that although the repercussions do in fact provision that a political party is not to be allocated an election symbol, the court, however, said: “It would be completely illogical to assume that a political party, a juristic person, is fully functional yet there are no natural persons who are either de facto or de jure performing its functions and running its affairs.”

“An enlisted political party is a juristic person, and like other juristic persons, it acts through natural persons [....] Therefore, after the intra-party elections (which were not later accepted by the Commission), Mr Gohar Ali Khan had assumed at least de facto charge of PTI’s functions and affairs as its Chairman. Consequently, the acts performed by him on behalf of PTI before 13 January 2024 were fully valid and effective,” says the verdict.

The judges who gave the majority judgment comprised Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Irfan Saadat Khan.

Justice Aminuddin Khan and Justice Naeem Akhtar Afghan, however, dismissed the SIC appeal and upheld the PHC decision.Similarly, Justice Jamal Khan Mandokhail and Justice Yahya Afridi appended their separate short orders.

Chief Justice Qazi Faez Isa, Justice Syed Mansoor Ali Shah and Justice Munib Akhtar agreed with the short order of Justice Jamal Khan Mandokhail.According to another development taking place on Monday, senior most SC judge and the incoming chief justice of Pakistan Justice Syed Mansoor Ali Shah questioned the constitutional validity of the recently promulgated new ordinance, amending the Supreme Court (Practice and Procedure) Act 2023, that was mandated to deal with the affairs of the top court including formation of benches.

In a letter addressed to the secretary committee, Justice Shah said that he could not participate in the committee meeting till the constitutional validity of the amendments, made through an ordinance, was determined by the full court bench of the SC.

While expressing concerns over exclusion of Justice Munib Akhtar from the committee, he pointed out that the amending Ordinance did not provide for necessary reconstitution of the existing committee comprising the Chief Justice and the two senior most judges; hence, the earlier committee could have continued even after the amendment made by the amending Ordinance.

“Furthermore, no reasons were given why the next senior most judge was ignored and instead, the fourth senior most judge was nominated as a member of the committee,” Justice Mansoor said adding that such unfortunate cherry picking and undemocratic display of one-man show are precisely what the Act tried to discourage and replace - a stance that was upheld by the Full Court Bench of this Court in Raja Amer case.

“The concentration of ultimate administrative powers in the hands of a single individual, such as the Chief Justice, runs counter to the ideals of democratic governance and judicial fairness... Embracing collegiality in administrative decisions ensures that the court’s functioning transcends the outdated notion of a ‘one-man show’, reflecting a more inclusive, transparent, and equitable judiciary that truly serves the public interest,” Justice Shah said.

Similarly, the senior judge said that it also needs recalling that the Chief Justice so firmly believed in the collegiality and transparency introduced by the Act that as a Senior Puisne Judge, he recused himself from sitting in any Bench and opted for chamber work for several months, awaiting decision of the then pending case of Raja Amer involving determination of the constitutionality of the Act.

“I am afraid, any proceedings taken or decisions made by the reconstituted committee will go against the Full Court Bench decision of this court in Raja Amer and will undermine the integrity of the highest institution of justice in the country as well as the public confidence in the decisions made by the Benches constituted by it,” Justice Shah maintained.

“Therefore, I am of the firm view that until the constitutional validity of the amendments made by the amending Ordinance is determined by the Full Court Bench of this Court, or the judges of this Court resolve to act upon the amendments in a Full Court meeting on the administrative side, or the earlier Committee is restored by the Hon’ble Chief Justice by nominating and including the second senior most judge of this Court, I, with respect, regret that I cannot participate in the meetings of the Committee,” Justice Shah concluded.

Earlier, Justice Syed Mansoor Ali Shah boycotted the meeting of the Supreme Court (Practice and Procedure) Committee constituted under the newly promulgated amendment Ordinance 2024.

It was learnt that meeting was presided over by Chief Justice Qazi Faez Isa and attended by Justice Aminuddin Khan, the judge who has been nominated by Chief Justice as member of the Committee constituted under the newly promulgated amendment Ordinance 2024.

The meeting decided to fix the review petition, filed against the judgment of the apex court regarding Article 63-A of the Constitution.