SC ruling that gave reserved seats to PTI not binding: CJP

ISLAMABAD: Chief Justice of Pakistan Qazi Faez Isa on Tuesday held that the clarifications issued by the majority judges in the reserved seats case do not constitute legal orders and are of no legal effect.

Chief Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel issued detailed reasons in the short order announced on July 12 by a 13-member full court in the Sunni Ittehad Council appeals in the reserved seats case. The Chief Justice, while issuing a 13-page additional note in the reserved seats case, declared that the majority’s order/clarification cannot be stated to have been issued by a ‘court’; the forum which issued them was coram non-judice.

Moreover, the Chief Justice held that such forum did not comply with the rudimentary principles of natural justice, of due process and of fair trial. “Therefore, with great respect, the same do not constitute legal orders and are of no legal effect,” the CJP held adding that they also cannot be categorized as a ‘decision’ of the Supreme Court (in terms of Article 189 of the Constitution), resultantly, they need not be followed or acted upon. Similarly, the Chief Justice held that contempt of court proceedings for any non-compliance of the ‘Order of the Court’, under Article 204 of the Constitution, cannot be initiated adding that the right of review, which Article 188 of the Constitution grants, was also effectively negated. The Chief Justice held that judges may decide or dispose of a case as per their understanding of the Constitution and the law but the case must be decided or disposed of. “Permitting appropriate application to be filed by the ECP or the PTI meant that the case was not decided or disposed of,” the CJP noted adding that this coupled with the stated timelines effectively kept the appeals pending. The Chief Justice held that in civil cases after a judgment is pronounced, the decree follows. In constitutional cases too, a judgment can be executed, provided it is finally and conclusively decided. “The majority’s short order and the majority’s judgment did not conclude the appeals,” the CJP held adding that the well-trodden legal path was abandoned by the majority which created unnecessary and avoidable problems.

The Chief Justice noted that since the appeals were not finally decided, there was no decision which could be stated to be binding, in terms of Article 189 of the Constitution. He agreed with the short order dated 12 July 2024 authored by Justice Jamal Khan Mandokhel and agreed with his detailed reasons. “I consider it my duty to point out the constitutional violations and illegalities in the majority’s short order of 12 July 2024, the majority’s detailed judgment of 23 September 2024, the order/clarification of 14 September 2024 and the Clarification of 18 October 2024 (respectively ‘the majority’s short order’, ‘the majority’s judgment’, ‘the majority’s order/clarification’ and ‘the majority’s Clarification’),” the CJP held.

The Chief Justice expected that his distinguished colleagues in the majority would reflect and correct their mistakes and ensure that Pakistan is governed in accordance with the Constitution. “Unfortunately, the review petitions against the majority short order could not be heard because my colleagues (Justice Syed Mansoor Ali Shah and Justice Munib Akhtar) outvoted me on the Committee constituted under the Supreme Court (Practice and Procedure) Act, 2023,” the Chief Justice noted. The Chief Justice said that these appeals were heard by a thirteen-member bench of this court, comprising all judges of the Supreme Court. The CJP noted that the majority’s short order concluded by permitting the Election Commission of Pakistan (‘ECP’) and Pakistan Tehreek-e-Insaf (‘PTI’) to, ‘apply to the Court by making an appropriate application, which shall be put up before the judges constituting the majority in chambers for such orders and directions as may be deemed appropriate. “This deviated from how courts have always functioned, was novel and unprecedented,” the CJP maintained adding that the majority of eight judges decided to part ways with the court, comprising 13 judges, which had heard the appeals.

The CJP further noted that the majority set up its own virtual court, permitted the making of ‘an appropriate application’ by the ECP and PTI, and directed that such appropriate application would only be heard by them whilst cloistered in chambers. “In doing this the majority of the Hon’ble Judges effectively legislated, because neither the Constitution nor any law permits what they did,” the CJP held adding that incidentally no party or counsel during the hearing ever suggested the course of action which the majority adopted, and neither the majority’s short order nor the majority’s judgment offers an explanation to justify it. “In effectively legislating the Hon’ble Judges in the majority also contradicted themselves and they stated that the ECP and the PTI may ‘apply to the Court’ but then proceeded to state that only the ‘judges constituting the majority’ would hear the ‘appropriate application,” the CJP noted adding that this was not the only contradiction.

The CJP further held that it has been settled by the Supreme Court that a hearing of a case after it has been decided (which would be a review petition) should be by the same bench and by the same number of judges as had earlier heard the case. The CJP said that the majority’s short order was announced on 12 July 2024, following which the Hon’ble Judges had to issue their detailed reasons for the same. “Instead something inexplicable happened and a purported ‘order’ was uploaded on the Supreme Court’s website on 14 September 2024, and this was done without informing the Chief Justice, the other judges (in the minority), and bypassing the Registrar and the office of the Supreme Court,” the CJP noted.

Similarly, the CJP noted that the majority’s order/clarification was followed by yet another; the majority’s clarification which, like the earlier one of 14 September 2024, was uploaded on the website of the Supreme Court. “This was done on Friday, 18 October 2024 at 3.59 pm and this time too the cause list was not issued, parties were not informed and an opportunity for a hearing was not provided. Where and when the Hon’ble Judges had met also remains a mystery”, the CJP held. The CJP said that the applicable provisions of our Constitution are clear and self-evident, and it is best not to look for meaning which does not exist in the Constitution of the Islamic Republic of Pakistan.

Meanwhile, Justice Jamal Khan Mandokhel, in his detailed reasons, held that they perused the nomination papers of 80 candidates, who joined the SIC, out of whom, 41 candidates in clear terms declared themselves as independents while filing their declarations without there being a certificate (ticket) from any party, including PTI. Justice Mandokhel noted that the date for submission of nomination papers as per the schedule was with effect from 20 December 2023 till 24 December 2023. “Admittedly, none of the candidates or the leadership of PTI came forward to claim that the candidates who declared themselves as independents, were actually the party’s nominated candidates,” the judge held adding that there is nothing on the record to suggest that these 41 candidates were compelled, coerced, pressurized, misinterpreted the law or judgment of this court or was there any other peculiar circumstance beyond their control, to declare their status as independents.

In the given circumstances, Justice Mandokhel noted that there is no reason, why they should be considered as PTI’s nominated candidates. Judges decide cases in accordance with the Constitution and law, based upon the material available before them. Any such contention must be supported by the record, which is lacking in this case, therefore, these 41 candidates were independents. The judge noted that according to Section 67(3) of the Act, ‘A candidate not nominated by any political party (hereinafter called as ‘independent candidate’)’.

Justice Mandokhel further noted that in Paragraph 110 of the judgment, authored by our learned brother Syed Mansoor Ali Shah, J., it is stated that, according to section 66 of the Election Act, two elements make a person the candidate of a political party: (i) the candidate’s own declaration that he belongs to that party, and (ii) the party’s certificate (party ticket) nominating him as its candidate. “We agree with these findings and in the light thereof, there is no dispute that these 41 candidates did not file declarations about their affiliation with PTI, nor is their party’s certificate (party ticket) nominating them as its candidates,” Justice Mandokhel held. The judge noted that this establishes the fact that at the time of submission of nomination papers, none of them had filed declarations about their affiliation with PTI, nor had a certificate (ticket) from the said party. “All these candidates after being notified as independently elected candidates had the option to join PTI, instead they by exercising their constitutional right, joined SIC with free will and consent, and stated so in the affidavits filed by them,” Justice Mandokhel noted and added that Salman Akram Raja, Advocate Supreme Court, appearing on behalf of PTI, surprisingly supported the stance of all those who joined the SIC.

Justice Mandokhel held that the declarations in the nomination papers of 41 candidates were stated as independents, which were also accepted by this court unanimously. “It is for this reason, that the Hon’ble majority members gave the 41 independent candidates an option that they may join PTI by submitting declarations about their affiliation with PTI and to obtain certificates of their nomination by PTI, within a period of fifteen days,” Justice Mandokhel maintained.

The judge however not agree with the decision of the majority members with regard to providing opportunity to 41 independently returned candidates, who have already joined the SIC, by exercising their constitutional right. “We respectfully do not agree with the findings of the majority judgment with regard to providing an option to members of National and Provincial Assemblies to join Pakistan Tehreek-e-Insaf (“PTI”) within a period of fifteen days,” Justice Mandokhel held.

The judge held that they are now members of SIC adding that neither the Constitution nor the Act permits them to issue direction or provide an opportunity or additional avenue to them to join another political party and that too, within a period of 15 days.

It is pertinent to mention here that a 13-member full bench of the apex court on July 12 while announcing judgment in Sunni Itehad Council appeals had ruled that Pakistan Tehreek-e-Insaf (PTI) was and is a political party, which secured or won general seats in the National and Provincial Assemblies in the General Elections of 2024 thus entitled for reserved seats, declaring unconstitutional and unlawful, the Election Commission’s decision of allocating reserved seats to the ruling coalition.

The court had heard the appeals of the Sunni Ittehad Council (SIC) against the judgment of the Peshawar High Court, denying the party reserved seats for women and minorities in the National and Provincial Assemblies.

The court by a majority of 8 had set aside the judgment of Peshawar High Court dated March 25, 2024 and declared the order of the Election Commission of Pakistan dated March 01. 2024 to be ultra vires the Constitution, without lawful authority and of no legal effect. Those 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 appeal of the SIC and upheld the decision of the Peshawar High Court. Similarly, Justice Jamal Khan Mandokhel and Justice Yahya Afridi have appended their separate short orders. Chief Justice Qazi Faez Isa, Justice Syed Mansoor Ali Shah and Justice Munib Akhtar had agreed with the short order of Justice Jamal Khan Mandokhel. The majority of judges had declared that the lack or denial of an election symbol does not in any manner affect the constitutional and legal rights of a political party to participate in an election (whether general or by) and to field candidates and the commission is under a constitutional duty to act and construe and apply all statutory provisions, accordingly.