Justice Jamal Khan Mandokhail on Thursday observed that former Chief Justice of Pakistan Qazi Faez Isa and CJP Yahya Afridi in their separate judgements last year had acknowledged the PTI’s right to reserved seats as a parliamentary party.
The remarks came as the Supreme Court’s constitutional bench (CB) heard review pleas against a ruling that had declared the PTI 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 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.
The CB live-streamed its proceedings on the SC’s YouTube channel, after accepting the SIC’s application for it last week.
Advocate Faisal Siddiqui appeared before the court today on behalf of the Sunni Ittehad Council (SIC), which the PTI-backed independent candidates had joined during the 2024 elections after the PTI’s election symbol was revoked.
Sikandar Bashir Mohmand was present as the ECP counsel while Barrister Haris Azmat appeared as the PML-N lawyer.
During the hearing, Justice Mandokhail noted that he and ex-CJP Isa, in their minority judgment, had agreed with the eight-judge majority verdict to the extent of 39 candidates. He further said that CJP Yahya Afridi had also acknowledged the PTI’s right to reserved seats.
Despite the 8-5 split, 11 out of the 13 judges had declared the PTI a parliamentary party. In his standalone order, Justice Afridi had ordered the ECP to provide an opportunity to the parties concerned about the reserved seats and, if required, to revisit its earlier decision within seven days.
Justice Mazhar, a part of the original majority verdict, also noted: “The minority judges acknowledged the PTI on the same grounds as the majority judges.”
The proceedings were then adjourned till 11:30am on June 16, with Siddiqi set to continue his arguments.
During the previous hearings, the CB had questioned the SIC’s standing in the case, noting that the original order had allocated seats to the PTI and not the SIC. Senior lawyer Makhdoom Ali Khan, counsel for women lawmakers affected by the SC ruling, has also contested the legality of that verdict.
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 hearing
At the outset of the hearing, Justice Mandokhail asked the PML-N lawyer whether he had addressed the point of a party’s candidates being declared as independent in his written response. Azmat replied that he had tried to answer the question.
Siddiqi contended that the Supreme Court Rules had not been considered in some petitions and asked that those be dismissed.
He said he would answer the question of why SIC chairman Hamid Raza contested the elections independently, at which Justice Mandokhail noted that the matter of “who contested in what manner” was not before the court.
However, Justice Hilali, referring to her questions in previous hearings, remarked: “I had some questions, which I did not get a satisfactory answer to.”
She noted that the SIC had existed as a political party since 2013, wondering how it was “made a parliamentary party” despite Raza not contesting the polls from his party.
“It was stated in the reserved seats case that voting is a fundamental right, even though voting is not a fundamental right,” Justice Hilali said.
Here, Justice Mandokhail recalled that he and ex-CJP Justice Qazi Faez Isa, in their minority judgment, agreed with the eight-judge majority verdict to the extent of 39 candidates.
“Justice Yahya Afridi also said that the PTI had a right to reserved seats,” the judge added. In his standalone order, Justice Afridi had ordered the ECP to provide an opportunity to the parties concerned about the reserved seats and, if required, to revisit its earlier decision within seven days.
Justice Mazhar, a part of the original majority verdict, observed, “The minority judges acknowledged the PTI on the same grounds as the majority judges.”
Siddiqi then questioned how the review applications could depend on the minority rulings, pointing out that the same judgments had “accepted the PTI as a party”.
Justice Panhwar noted, “The verdict challenged by those who brought the review petitions had not even been read before us.”
Justice Mazhar questioned whether judges could decide outside the constitutional scope. “Even if for the public aspiration and democracy, can judges rewrite the Constitution?”
Siddiqi responded that the Constitution had not been rewritten, at which Justice Hilali observed that it had been. “Three days’ period was extended to 15 days,” she said, referring to the time given to 41 independent candidates to resubmit their party affiliation.
Upon the lawyer contending that the majority of the judges were in favour of the PTI getting the reserved seats, Justice Aminuddin remarked, “You are creating issues for yourself.”
Siddiqi then replied, “We have no issue whether the PTI gets the reserved seats or the SIC; it is the same.”
The lawyer argued, “Everyone should get equal rights. PTI candidates were deliberately not given their rights.”
Justice Mandokhail then remarked, “Democracy has been mentioned. Is it not democracy for the candidates to decide on their own? No one can be forced to join another party. Those independent candidates who want to join another party can do so.”
Here, Justice Aminuddin addressed Siddiqi, saying: “You keep going to the past.” The lawyer responded that the original ruling had not been read aloud before the bench, at which Justice Mandokhail asked why he was complaining when no one had stopped him from reading it.
At one point, Justice Hilali again questioned the SIC’s role in the conundrum.
Addressing Siddiqi, she asked: “Why did you (SIC) not tell the PTI that ‘we are not contesting the elections’? The SIC chairman should have informed the PTI that he is running in the elections independently.”
Referring to the dissenting order by Justice Aminuddin and Justice Afghan that had denied the PTI reserved seats, the lawyer stated, “I do not agree with Justice Aminuddin’s judgment but it was a very forceful decision.”
At one point, Justice Mazhar, Justice Hilali and Siddiqi went back and forth over the right to vote being a fundamental constitutional right.
Siddiqi cited Articles 17 and 19 of the Constitution, which guarantees the right to affiliation and speech, respectively.
When Justice Hilali asserted that voting was not a fundamental right by birth but created by the statute, Siddiqi explained that there were three types of rights — “natural such as the right to life, given by the statute and fundamental that can only be taken away after a Constitutional Amendment”.
As the hearing was adjourned till June 16, Siddiqi said he would want two hearings to complete his arguments.
