SC’s July 12 order transgressed limits of judicial power | The Express Tribune

ISLAMABAD:

The Constitutional Bench has ruled that the eight-judge majority judgment of the Supreme Court announced on July 12, 2024, which held that the Pakistan Tehreek-e-Insaf (PTI) was entitled to get reserved seats, had ignored the “will of people” and “command of the Constitution”.

“Elections to the reserved seats, no doubt indirect, and no doubt based on the principle of proportional representation, were no longer determined by the will and votes of the electorate. They were taken over by the court. Further, the will of the people and the command of the Constitution was ignored and made subservient to the directives of the court and the wishes of the leadership of PTI,” says a 40-page detailed judgement while accepting the review petitions filed by Election Commission of Pakistan (ECP), Pakistan Muslim League-Nawaz (PML-N) and others against July 12 order declaring that PTI was entitled to get reserved seats after February 8 general election.

After three months, the detailed judgment has been issued, though it provides no clarity about the authoring judge. Earlier, a short order had been released on June 26.

The judgment observes that the July 12 order acknowledged this legal and constitutional position and gave effect to it by dismissing both appeals filed by the Sunni Ittehad Council (SIC). Once the appeals were dismissed, there was no option but to uphold the rulings of the Peshawar High Court and the Election Commission of Pakistan (ECP).

The majority, however, instead of taking this legal and constitutional course used the so-called “peculiar facts and circumstances of the General Election of 2024 to issue a series of declarations and directives”.

The judgement notes that setting new timelines which were at variance with the provisions of the statute and the Constitution and that too with retrospective effect could have been done but only by the legislature in exercise of its constitutionally vested authority to amend the statute and the constitution, with prospective or retrospective effect in accordance with the established procedures.

“By issuing these declarations and directives the Court transgressed the limits of judicial power, acted in excess of its jurisdiction, and in violation of Article 175(2) of the Constitution”

“Not only did these declarations and directives violate the statutory and constitutional provisions, the doctrine of separation of powers mandated by the Constitution, transgressed judicial limits clearly demarcated by the Constitution and trespassed into the legislative field but they also clearly and categorically violated the democratic norms and principles which imbue the letter and spirit of the Constitution. Elections to reserved seats, no doubt indirect, and no doubt based on the principle of proportional representation, were no longer determined by the will and votes of the electorate. They were taken over by the Court.”

The judgement noted that the people were deprived of the mandate to elect candidates to the reserved seats, no doubt indirectly, and the matter was now placed in the hands of and made a gift by the party leadership to the persons it liked as a consequence of the orders of court.

It further observed that Supreme Court has the jurisdiction to interpret the statutes and the constitution.

“Insofar as it remains within those limits its authority is both considerable and absolute. It cannot be called into question by any other department of government or even by another constitutional institution, be it the Legislature or the Executive. The authority to interpret the law and the Constitution does not, however, confer on the courts the authority to rewrite the Constitution or the law.

“The will of the legislature and the will of the Constitution-makers delegated as it is by the people has to be respected and given effect to. It cannot be negated or usurped by the judiciary by scribing artificial meanings to the clear language of the Constitution or by derogating from the plain meaning of its words. Any Court or judge, including the

Supreme Court and its judges, has no jurisdiction to read their personal likes and dislikes into the Constitution or to ignore or circumvent its commands.

“The power to interpret is a very wide and formidable power indeed but that power is negated not enhanced when the Court proceeds, under its guise, to rewrite the Constitution”

The CB objected that in July 12 order, no reference was made or attention paid to Article 225 of the constitution which requires that no election to either House of Parliament or a Provincial Assembly shall be called in question except by election petition presented to such tribunal and in such manner as may be determined by an Act of Parliament.

The court said that the proceedings before the court were two civil appeals under Article 185 of the Constitution. “These were adversarial proceedings and were being litigated between parties. No Supreme Court judgment supported the proposition and none was cited in support of the novel proposition that election disputes were inquisitorial not adversarial and were adjudicated and decided as civil disputes”

The court said that July 12 order relied on Article 187 of the constitution which authorises the court to do complete justice to justify the conclusions reached by it.

“Under Article 187 of the Constitution this Court may, of course, pass any order or issue directions as may be necessary for doing complete justice. This authority is sparingly exercised and must be justified in the facts and circumstances of a case.

“In this case there was no justification for invoking Article 187 and to grant relief to PTI as PTI had not claimed the reserved seats before any fora, including this Court. It was not a party in the proceedings before ECP. It was not a party in PHC. It did not challenge the judgment of PHC before this Court. It also did not seek reserved seats in its intervenor application.”

The court held that Article 187 of the constitution could not have been invoked to grant relief to PTI.

“The facts and circumstances of this case did not require application of Article 187. The exercise of authority purportedly under Article 187 of the Constitution to grant relief to a party which was not before the court, to remove from office MNAs and MPAs who had been declared elected and who were not before the Court and to issue declarations and directives which were outside the scope of the statutory or constitutional authority of this court was not warranted.

“The impugned majority judgment being in excess of the jurisdiction vested in the Court and being contrary to the statutory and constitutional provisions identified above suffers from errors apparent on the face of the record which float on the surface. It, therefore, has to be set aside.”

Debate on detailed judgement

Initially, 13 members Constitutional Bench heard the review petitions, wherein six members of the original bench were not included without valid reason. The detailed judgement is silent as to why the CB committee did not refer the matter to Judicial Commission of Pakistan (JCP) for the inclusion of those judges.

Likewise, order of the court wherein all 13 judges signed has yet to issue in this matter. The judgement did not discuss this aspect.

Two of them namely Justice Ayesha Malik and Justice Aqeel Ahmad Abbasi had rejected review petition on account of non-maintainability on the very first day of hearing. Despite their rejection, CB counted their votes. Although both judges did not agree with the bench opinion regarding counting of their votes.

After the recusal of Justice Salahuddin Panwar at the last hearing, the bench was not reconstituted. The detailed judgment made no reference to the January 13 ruling, which had allowed the ECP to declare PTI-backed candidates as independents.

The detailed judgement is totally silent on the conduct of ECP in February 8 election.

Most importantly, the CB judges failed to justify how the 78 reserved seats, which could not be allocated to PTI, would be distributed among other political parties. As a result of this judgment, the ruling parties have secured a two-thirds majority in the National Assembly.

Senior lawyers believe that democracy is a silent feature of the constitution. They say that the judgment undermined the will of the people by granting the ruling parties a two-thirds majority against their actual mandate.

Now six judges namely Justice Aminuddin Khan, Justice Musarat Hilali, Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Justice Aamer Farooq, Justice Ali Baqar Najfi have signed detailed judgement.

Justice Hasham Khan Kakar will write an additional note. Justice Muhammad Ali Mazahar and Justice Hasan Azhar Rizvi, who reviewed their opinion, will now write separate notes.

Justice Jamal Khan Mandokhail, who had partly allowed review petition will now write own reasons.

Barrister Asad Rahim Khan says this is “easily among the worst and most unwittingly comical decisions in our legal history; which is notable in itself, given that Qazi Faez Isa is no longer authoring judgments. Armed mainly with a single unconvincing technicality—that the Sunni Ittehad Council was before the Court and not the PTI—the so-called ‘Constitutional Bench’ has reversed a decision that was superior in reasoning, broader in scope, and far truer to the spirit of the law.”

“¬Amazingly, it has not devoted even a single sentence to its most glaring inadequacy: the fact that a 12-member bench is in no position to review the decision of 13 members,” he adds.

Khan further states that “as for the majority’s logic, Pakistan’s history is already littered with verdicts that prize commas and contortions over justice, federalism, and democracy—from Tamizuddin onwards. Yet the review majority goes even further, actually holding that the voter knew full well that, when casting a ballot for an independent candidate, the winner would not secure any reserved seats. Left out of this remarkable observation is any mention of the ECP’s disastrous missteps or Qazi Faez Isa’s ludicrous party symbol verdict, which disenfranchised the voter in the first place.”

He continues: “The review majority then tops this off by holding that the original verdict actually ignored the rights of the returned candidates. This is the first judgment in Pakistan’s history that seeks to elicit sympathy for losing candidates occupying seats their party never won.”

Khan concludes that the Constitutional Bench “continues to achieve through its judgments what the authors of the 26th Amendment had always dreamed of.”