Dissenting views raise eyebrows
The debate is heating up over the fallout from two judges' minority opinion in the reserved seats case.
Justice Aminuddin Khan and Justice Naeem Akhtar Afghan, in their dissenting stance, argued that any court order not in sync with constitutional provisions is not binding on any other constitutional organ of the state.
Faisal Siddiqi, who represented the Sunni Ittehad Council (SIC) in the case said it might deceptively appear that the ruling party's actions and the dissenting Supreme Court judgment are simply aimed at denying the reserved seats to PTI.
"No, the larger purpose now is to prevent Justice Mansoor Ali Shah from becoming chief justice of Pakistan in October 2024. They will not succeed in this game as the combined opposition of the people, lawyers and overwhelming majority of judges will prevent this," he added.
Former senator Mustafa Nawaz Khokhar commented that dissenting judgments are simply "a statement of a judge's disagreement with the majority's conclusions, with no sensible prospect of it ever influencing the future development of the law." He added, "Nothing more."
However, some legal eagles are speculating whether the two judges are stirring the pot, possibly goading state institutions, especially the Election Commission of Pakistan (ECP), into ignoring the majority judgment. A senior advocate noted that he hadn't seen a review request against the primary order being referred to in either majority or minority judgments.
Interestingly, like Chief Justice of Pakistan (CJP) Qazi Faez Isa, the two judges are concerned that the review petition might become infructuous.
Advocate Abdul Moiz Jaferii observed that it is unusual for two judges to provide detailed commentary on a decision that falls outside the review timeline. "A decision has been rendered by a full court. It is laughable to assume that they are tied to some timeline for review when they have already offered a short order," he said.
"Never in the Supreme Court history has a 13-member judgment been compiled within the time allowed for review," he added.
Jaferii stated that the idea it will render some rights infructuous is "ridiculous", noting that if the seats are assigned to the PTI because the court has commanded it, they can be reassigned to other parties if a review successfully points out an error in the decision.
He maintained that any decision made by members on those seats can similarly be reversed. He stated that this is a usual practice in court decisions, adding that several interim orders are also denied on this premise, as the courts will later undo any ill effects of the process under challenge by reversing it in their final decision. He said it is a regular practice.
Jaferii mentioned that true infructuousness occurs when a decision leads to an irreparable outcome before a review is heard.
For example, the January 13 decision to deprive the PTI of its symbol led to irreparable and incalculable harm during the general election. A review of this decision is still pending, having been truly rendered infructuous.
The advocate noted that also, on the merits this decision regurgitates completely the ECP position before the court. It completely ignores the malice with which the PTI and SIC were treated and the pressure they were operating under.
It completely ignores what the bench politely termed a cascade of errors by the ECP which pushed the PTI into this technical corner. A cascade of errors that many see to be a deliberate and malicious subversion of the electoral process with clear premeditation
He noted that on the merits this decision completely regurgitates the ECP's position before the court. He said it entirely ignores the malice with which the PTI and SIC were treated and the pressure they were working under.
It also disregards what the bench described as a cascade of errors by the ECP that pushed the PTI into this technical corner that many view as a deliberate and malicious subversion of the electoral process with clear premeditation, he added.
Former additional attorney general Tariq Mahmood Khokhar stated that nothing has changed. "The Supreme Court adds one more 'legal astonisher' to its short history – a two-member minority opinion urges a constitutional organ not to accept an eight-member majority judgment," he said.
In its considered opinion - "An order of the court which is not in consonance with the constitutional provisions is not binding upon any other constitutional organ of the State."
Khokhar said the minority opinion does not address the question of who decides what is not in consonance with constitutional provisions.
"This constitutes resistance to the decision; resistance to the Supreme Court," he said, adding that it "reeks of ignorance, partisan bias and antipathy to democracy".
Elaborating the minority opinion, Hafiz Ahsaan Ahmad, said the two members of the full court correctly heldon both the legal and constitutional frontsthat the majority judgment on the allocation of reserved seats to PTI with the utmost respect, disregards all procedural rules, substantive legal provisions, and the Constitution relating to the lis under Article 185 of the Constitution starts from the Election Commission up to the Supreme Court.
He said the dissenting judgment was detailed and aligned with the Supreme Court's judgment from July 12 regarding reserved seats allocation. It noted that relief could not be awarded to PTI because the party did not appear in court, did not seek to join ECP, the high court, or the Supreme Court as a party, and did not assert its right to the disputed reserved seats, adding that instead, PTI supported the SIC in all forums.
Hafiz Ahsaan maintained that only Parliament is empowered to carry out constitutional functions such as inserting, amending, or substituting Articles 51, 106, or Section 104 of the Election Act 2017. He argued that the Supreme Court does not have this authority, particularly in cases involving substitution or inconsistency under unusual or peculiar circumstances.
He said neither the Constitution nor the jurisdiction granted to this Court is relevant to the superstructure created by the majority's brief judgment on the allocation of reserved seats to PTI.
He claimed that the Supreme Court can only interpret the Constitution; it cannot amend it or delve into its provisions beyond interpretation. This position aligns with other rulings from the Pakistani Supreme Court and with internationally accepted theories of constitutional interpretation.
Hafiz Ahsaan said the two members of the full court correctly pointed out that the Supreme Court cannot suspend, insert, or alter Articles 51, 106, and 63 of the Constitution or Section 104 of the Elections Act, 2017. If the court were to do so, it would exceed its jurisdiction as defined by Articles 175 and 185 of the Constitution, along with the relevant regulations. The constitutional expert believes that such actions are outside the Supreme Court's jurisdiction given the clear language of these Articles.
Lastly, he said the two judges who dissented from the majority decision in the Supreme Court had correctly concluded that the court should not have extended its jurisdiction beyond what is permitted by Articles 175 and 185 of the Constitution in order to grant relief to PTI in these proceedings.
It has been observed that judicial politics within the apex court has intensified, with efforts being made to prevent Justice Syed Mansoor Ali Shah from becoming the next CJP.
However, the minority opinion is likely to create more chaos and anarchy in the country. Instead of focusing on their own interests, Supreme Court judges should prioritize strengthening the judiciary.