Contrary to the majority opinion of a full bench of the Supreme Court, which on July 12, 2024 ordered allocation of reserved seats to the PTI, a constitutional bench (CB) reviewing the order states that the PTI is itself to blame for not getting reserved seats after the Feb 2024 general elections.
While hearing review petitions in the reserved seats case, the judges are wondering as to why the PTI did not challenge the Election Commission of Pakistan (ECP) orders to declare its candidates independent despite the fact that eminent lawyers were contesting elections on the PTI ticket.
The judges are also consistently defending the January 13, 2024, order of the Supreme Court to declare PTI's intra-party election illegal. The order had resulted in stripping the party of its election symbol
Even the judge, who himself raised serious questions on the conduct of the ECP in his minority view, is criticizing the PTIs' "poor legal strategy" to get reserved seats and the decision of the PTI backed candidates to join the Sunni Ittehad Council (SIC), which had not contested in the general elections.
A three-member bench led by former Chief Justice of Pakistan Qazi Faez Isa announced the verdict in the PTI intra-party election case on the night of January 13, 2024, the last date for submission of party symbols in the general elections.
Since May 9, 2023, PTI leadership has been accusing the government of using coercive tactics to pressure its leaders into leaving the party. Even during the elections, PTI-backed candidates were not allowed to run any campaign. Even nomination papers of some candidates were snatched before their submission.
The bench led by Justice Qazi Faez Isa had compelled the ECP to announce the date for the general elections in consultation with the president. However, there was a serious clash between the former CJP and the PTI as the latter had filed a presidential reference for his removal during its rule.
After January 13, 2024 order, the PTI had lost hope that it could get any relief from the Supreme Court led by CJP Isa and after the intra-party election case order, PTI counsel Latif Khosa had withdrawn the contempt petition filed against the ECP for not complying with the SC decision to provide level playing field to the PTI to contest the elections.
Some lawyers ask why CJP Isa did not list the review petition against his order for hearing to clear up the ambiguity, if the ECP was misinterpreting the order by declaring PTI candidates independent.
They note that if the SC could issue two clarifications in the Mubarak Sani case, then why could it not take notice of the misinterpretation of its important ruling by the ECP, which is a constitutional body.
Constitutional benches (CBs) have also been created in the Supreme Court and high courts in view of the 26th Constitutional Amendment, which, according to the PTI, was passed using coercive tactics.
The CB hearing review petitions against the SC's July 12, 2024 order in the seats case also comprises judges who are selected by the executive members in the Judicial Commission of Pakistan (JCP) after passage of the 26th amendment.
No explanation is given as to why the CB committee did not give a recommendation to the JCP for the inclusion of the six judges who were part of the original bench that heard the reserved seats case.
Currently, no one on the bench is backing the majority decision in the reserved seats case. Even two signatories of the majority judgement are not passing any remark in favour of the July 12 verdict.
Justice Ali Baqar Najfi has given a surprise by using the term "biased" for the majority decision. Only Justice Salahuddin Panwar is showing interest in reading the majority judgement.
Justice Muhammad Hashim Khan Kakar said they, being junior judges, should defend the judgement under review. He, however, urged the SIC counsel Faisal Siddiqi to highlight important points for the determination at this stage.
Justice Aminuddin Khan, who is leading the bench, is consistent in his approach. He has been consistently raising questions about the relief given to the PTI by the majority judges on July 12, 2024.
Justice Mussarat Hilali, who was a member of the bench which had given January 13, 2024 order in the intra-party election case, is expressing concern that the majority judgement discussed the PTI intra-party election case judgement, which was not challenged before them.
Faisal Siddiqi said the majority judges criticized the ECP's conduct but they did not question the January 13 order. Siddiqi is trying to read the important portions of the July 12 judgement before the bench.
There are very slim chances that majority judgment will be upheld by this bench.
There is a criticism that the majority judges had done judicial overreach in this case. On the other hand, PTI lawyers are saying that majority judges had tried to restore democracy which is the salient feature of the Constitution. The hearing of the case is adjourned until June 16.
If the PTI could not get reserved seats, then the situation may not change but if the ruling parties get reserved seats then they will be easily in a position to get two-thirds majority in parliament, enabling them to amend the Constitution.
PPP through Farooq H Naek and Asad Abbasi have filed written replies in the reserved seats case. The PPP said the order under review contravenes established principles of constitutional interpretation.
By devising a procedure not contemplated under the Constitution, the order ventures into legislative territory, contrary to this honorable court's consistent jurisprudence that "the function of the court is interpretation, not legislation."
The reply states that it is a settled principle of this court that when the law prescribes a specific manner and procedure for doing something, it must be followed strictly without deviation. This principle alone warrants the recall of the order under review, it added.
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