Judges object to bench in reserved seats case

ISLAMABAD:

Supreme Court Justices Ayesha Malik and Aqeel Abbasi have expressed reservations regarding the constitution of the bench that heard review pleas challenging the top court's ruling, which declared the Pakistan Tehreek-e-Insaf (PTI) eligible for reserved seats.

In their dissenting note, the judges pointed out that the original case was heard by a 13-member bench, five members of which, including the author, were available but excluded from the bench constituted to hear the review petitions.

This, they observed, was important to note, notwithstanding that none of the parties before them raised any objection to the bench's constitution.

They observed that this exclusion stemmed from Article 191A of the Constitution, inserted through the 26th Amendment, which requires the formation of constitutional benches comprising judges nominated and determined by the Judicial Commission of Pakistan (JCP).

"The judges who have been excluded were not nominated for the constitutional bench by the JCP to hear the review petitions," they further noted.

"In this context, the Twenty-Sixth Amendment also amended Article 175A of the Constitution by reconfiguring the Members of the JCP such that it includes amongst others two members from the Senate and two members from the National Assembly of whom two shall be from the Treasury Benches, one from each House, and two from the Opposition Benches, one from each House."

They stated that the effective majority in the JCP for appointing judges to constitutional benches now rests with the government and political parties.

"The members of the JCP, particularly those representing the government and political parties, are bound by a constitutional duty to ensure that their nominations are fair, transparent and impartial. As the JCP is established under the Constitution, it must uphold and safeguard the basic principles and values of the Constitution which include the independence of the judiciary."

Pointing out that the JCP functions within a constitutional scheme predicated upon the rule of law, separation of powers, and supremacy of the constitution, the dissenting order emphasised that it was therefore incumbent upon members of the JCP to discharge their functions with integrity and in a manner that exemplifies constitutional propriety, ensuring that the independence and integrity of the judiciary is always protected and maintained.

"Any departure from its constitutional duty will weaken not only the judiciary but public trust and confidence, which is fundamental to a constitutional democracy," they cautioned.

They further noted that this constitutional duty also extends to the committee formed under Article 191A(4), which is tasked with determining the composition of constitutional benches from among those judges nominated by the JCP.

It was incumbent upon the committee, they wrote, to ensure that the review petitions were heard by a bench that included all available members of the majority's opinion, including its author judge.

"In our opinion, the Committee should have requisitioned the JCP for nominations of these judges for the purposes of the review petitions because the function of this Committee is not merely procedural or ministerial, rather it carries substantive constitutional weight. The legitimacy of a bench lies not only in the process of nomination, but equally in the manner of its constitution. It must therefore act with the same degree of fairness, impartiality and fidelity to constitutional values as is expected of the JCP itself."

"When the constitution of a bench gives rise to doubts about fairness, the legitimacy of the entire process is called into question. In our opinion, the current composition of the Bench reflects the will of the majority of the JCP which comprises of members from the Government PML(N) and the PPPP who are Review Petitioners before us," the dissenting order added.

The judges warned that this raised serious concerns about fairness, impartiality, and transparency, adding that propriety demanded the inclusion of the five judges who had constituted the majority in the original verdict.

They also observed that in the Supreme Court's order dated May 6, 2025, it was stated that at the time of final determination by the remaining members of the bench, the dismissal of the review petitions by the two dissenting members would be counted. "Respectfully, we do not agree with this observation."

"In view of the aforesaid, we find no ground has been made out for issuance of notice, hence, these Review Petitions are dismissed. CMA No.7458 of 2024 seeking permission to argue the case, being not maintainable, also stands dismissed."

The dissenting opinion was part of the reserved seats review case, in which the judges disagreed with both the maintainability and the outcome of the review petitions filed by the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan Peoples Party (PPP).

The dissent further defended the scope of the original judgment, stating that it dealt with a broader issue concerning the protection of voters' rights. "The judgment addressed a wider question of protecting the rights of voters," the note read.

Justice Malik and Justice Abbasi also raised objections to the short order issued on May 6, which stated that their dissenting views would be considered in the final ruling. "With utmost respect, we disagree with this observation," the dissenting note reads.

The judges rejected the review petitions on reserved seats, making it clear that they did not support revisiting the original judgment.

The dissenting opinion added that the review petitions failed to identify any error in the original ruling. It noted that the PML-N and PPP had only challenged the court's short order and did not seek a review of the detailed judgment, which was issued over seven months ago.

Both parties, the judges observed, had not contested the detailed verdict.

The note further mentioned that the Election Commission of Pakistan had objected to the Pakistan Tehreek-e-Insaf not being a party in the original case, a matter that, according to the dissenting judges, had already been addressed in the detailed verdict.

Non-publication of dissenting note

In a related development, Justice Ayesha Malik also wrote a letter to Chief Justice of Pakistan (CJP) Yahya Afridi, raising serious concerns over the non-publication of her dissenting note on the apex court's official website in the reserved seats review case.

According to the letter, Justice Malik had sent her dissenting note to the SC's IT department at 3:11 pm on the previous day, with instructions to upload it.

However, despite a follow-up direction issued again on the morning of the following day, the IT department failed to comply.

Justice Ayesha termed the IT department's non-compliance with instructions as "unacceptable".

She urged the chief justice to immediately ensure that the copy of the judgment, including her dissenting note, be uploaded to the SC's website without further delay.

"A copy of this letter is being sent to all the Honble Judges of the Court along with a copy of the Order by Justice Aqeel Ahmed Abbasi and myself to bring to their attention this dereliction of duty on the part the I.T Department, on a matter that should and is ordinarily attended to in a routine manner but in the case of this Order, has become a matter of unexplained difficulties," the letter stated.