Justice Jamal Khan Mandokhail questioned the PTI’s decision to merge with the Sunni Ittehad Council during last year’s elections as the Supreme Court’s constitutional bench (CB) heard review pleas against last year’s ruling that had declared the main opposition party eligible for reserved seats.
In its July 12, 2024 short order, eight out of 13 judges ruled that 39 out of a list of 80 MNAs were and are the returned candidates of the PTI, setting it to emerge as the single largest party in the National Assembly.
However, the ruling had not been implemented by the National Assembly, while the Election Commission of Pakistan (ECP) had raised some objections. The review petitions against the SC order had been filed by the PML-N, the PPP and the ECP.
An 11-member CB led by Justice Aminuddin Khan resumed the hearing today after Justices Ayesha A. Malik and Aqeel Ahmed Abbasi had dismissed the review petitions on the first day of hearings.
The CB live-streamed its proceedings for the first time today, after accepting the SIC’s application for it last week. The hearing was live-streamed on the SC’s YouTube channel.
The other 10 members of the bench were Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan, Shahid Bilal Hassan, Muhammad Hashim Khan Kakar, Salahuddin Panhwar, Aamer Farooq and Ali Baqar Najafi.
During today’s hearing, Justice Mandokhail observed that it was not a political party that contested the elections but rather its candidates.
He further noted that the problem of reserved seats would not have arisen had the PTI-backed independent candidates not joined the SIC — a decision former premier Imran Khan’s party took after having its election symbol revoked by the SC just a month before the polls.
Senior counsel Makhdoom Ali Khan appeared on behalf of PML-N and PPP women candidates affected by the July 2024 ruling and concluded his arguments.
ECP counsel Sikandar Bashir Mohmand and PML-N lawyer Barrister Haris Azmat also informed the court that they had submitted their written responses. PPP’s Senator Farooq H. Naek said he would file his party’s response tomorrow. Subsequently, the hearing was adjourned till tomorrow (Tuesday).
Initially, a full-strength 13-member CB led by Justice Aminuddin took up the review pleas on May 6. However, Justices Ayesha and Abbasi declared the applications as inadmissible and were not part of the subsequent proceedings, with the CB head judge noting they had stepped back voluntarily.
Justice Ayesha had formally complained to Chief Justice of Pakistan (CJP) Yahya Afridi about her dissenting order not being uploaded to the SC’s website.
In her judgement, she had criticised the ECP for not implementing the earlier order, observing that it would “not only undermine the authority of the Supreme Court but also erode the foundational values of democracy itself”.
The Sunni Ittehad Council (SIC), which allied with the PTI during the 2024 elections and was a party in the reserved seats case, had requested the bench to put off the hearing until challenges to the 26th Amendment were decided and to include judges who had heard the original case.
However, the CB dismissed those pleas, with Justice Aminuddin observing that review petitions could be heard even by a bench smaller than the original bench after the 26th Amendment.
The hearing
At the outset of the hearing, Makhdoom began presenting his arguments, Justice Hilali wondered how the SIC could be eligible for reserved seats.
“How can independent lawmakers join a political party that is not in the parliament? Did SIC take part in the elections?” she asked, at which the PPP lawyer replied that the party had not participated in the polls and that even its chairman Sahibzada Hamid Raza had contested as an independent candidate.
Justice Mandokhail then observed that the SIC was not eligible for reserved seats. “The Sunni Ittehad Council could have become a parliamentary party but it does not have the right to reserved seats.”
Makhdoom contended that lawmakers elected on the reserved seats had been denotified without any prior notice, at which Justice Mazhar pointed out that the SC had struck down the ECP notifications.
The lawyer reiterated that the affected lawmakers should have been alerted about it beforehand. He argued that the ruling did not address Article 255 of the Constitution, according to which “no election to a House or a provincial assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined” by a parliament Act.
Justice Mandokhail inquired how Article 255 was applicable in this case, highlighting that the matter pertained to reserved seats, which are to be allotted based on proportional representation in the parliament.
At Makhdoom saying that a complaint pertaining to a mistake in nomination papers should have been taken up before a tribunal, Justice Mandokhail observed that the case did not come under the Peshawar High Court’s jurisdiction if the lawyer’s arguments were to be accepted.
Makhdoom asserted that it was the SC’s responsibility to “correct a mistake” as any decision “contrary to the Constitution and laws would be defective”. Justice Mandokhail remarked, “If the majority of the judges deem that the ruling was correct and the review pleas are not, what would happen in that situation?”
At this point, Justice Bilal asked whether the PTI was a party to the case, wondering, “How can a party that is not a respondent [in the case] be given reserved seats?”
Makhdoom answered that such a political party could not get reserved seats. CJP Afridi also observed that the PTI was not a respondent in the case.
Here, Justice Mandokhail observed, “We also have to review the ECP’s role at the time. In my opinion, the ECP did not fulfil its responsibility. [While] allotting the reserved seats or not is an issue, the election commission’s role is also to be looked at.”
The judge stated that in his minority judgement, there was “no formula for a middle path”. He noted that he perused the available records all night, according to which 41 candidates had written PTI in their party certificate and affiliations.
Here, Justice Afghan observed, “The Constitution cannot be rewritten. Justice Mandokhail and Justice Afridi have also written that fulfilling the legal requirement of a timeline is mandatory.”
Makhdoom then contended that Article 178 of the Constitution had “no jurisdiction”. “Complete justice is a provision of the Constitution, under which the SC does complete justice on a dispute. The right cannot be used to provide relief to a third party that is not a respondent in the case,” he argued.
Justice Mandokhail then quipped, “This is the Supreme Court, not a civil court.”
At Makhdoom giving a hypothetical situation of a dispute between a landlord and a tenant, the judge replied that matter would be of a personal nature and stressed that the current case was about the “people’s right to vote”.
As Makhdoom quoted a judgement by CJP Afridi, Justice Mandokhail pointed that the top judge had called for the SC’s right to provide complete justice to be used with caution.
At one point, Justice Mandokhail remarked, “A political party does not end by not having an election symbol. A political party does not contest elections but its candidates do.
“An election symbol is for the public’s awareness. Someone cannot be stopped from running for elections due to not having an election symbol.”
The judge further noted, “If the independent candidates had remained in the PTI instead of joining the SIC, this issue would not be there today. If the SIC had contested the elections on its party symbol, then also the issue would not have arisen.”
Tug-of-war over reserved seats
In its detailed verdict on the reserved seats case, which was authored by senior puisne judge Justice Mansoor Ali Shah, the SC had observed that the ECP’s numerous “unlawful acts and omissions” had “caused confusion and prejudice to PTI, its candidates and the electorate who voted for PTI”.
It had also castigated the ECP for failing to fulfil its “role as a guarantor institution and impartial steward” of electoral processes.
On September 14, 2024 — the day the government was supposed to lay the 26th Amendment in both Houses of the parliament but could not — the Supreme Court, through a clarification, had reprimanded the ECP for not implementing its July 12 ruling in the reserved seats case.
Later on October 18, in yet another clarification, Justice Shah reiterated that the effect of an amendment made in the Elections Act 2017 in August last year could not undo the reserved seats case verdict.
The bill, titled “Elections (Second Amendment) Act, 2024”, was seen as aimed at circumventing the apex court’s verdict on the reserved seats case by barring independent lawmakers from joining a political party after a stipulated period.
A six-judge CB of the apex court was set to take up the PTI’s petition challenging those tweaks to the election laws in December 2024. A separate plea of the PTI against the Jan 13, 2024 ruling denying it its election symbol is also pending before the SC.
More to follow
