ISLAMABAD:
The highest court in the land on Monday waded into uncharted waters as it began hearing review petitions against its July 12 judgement – a verdict that had handed Pakistan Tehreek-e-Insaf (PTI) reserved seats in the national and provincial legislatures – but without six of the original judges, including the judgement’s author.
The hearing broke new ground in more ways than one, marking several firsts in judicial history.
The review petitions, filed by the ruling PML-N and PPP alongside the Election Commission of Pakistan (ECP), are being heard by a 13-member larger bench.
Curiously, the majority of the new Supreme Court bench were not part of the original decision, and no explanation has been offered as to why the court’s constitutional committee did not recommend including the six judges from the earlier ruling.
For the first time since the 26th Constitutional Amendment was passed, the Supreme Court proceedings were broadcast live, a move hailed as a step toward transparency, though the absence of key judges cast a long shadow.
Despite the high stakes, not a single judge offered observations in favour of the majority judgement under review. Even Justice Muhammad Ali Mazhar and Justice Hasan Azhar Rizvi – both signatories to the original ruling – remained unusually tight-lipped, adopting a tone of marked restraint.
In contrast, two judges who had not been part of the original bench raised a fundamental question: if the PTI was not a party in the initial case, how could it receive relief?
They wondered as to how reserved seats were given to PTI when they were not a party, neither before the ECP nor the Peshawar High Court (PHC).
Justice Aminuddin Khan observed that it was an admitted fact that all PTI-backed returned candidates had joined the Sunni Ittehad Council, which had not contested the general elections.
He pressed further, asking whether any PTI-backed returned candidate had approached any forum to declare himself as a PTI candidate.
‘Should the SC shut its eyes?’
The elephant in the courtroom, however, remained the role of the ECP during the controversial February 2024 polls, with most judges sidestepping the discussion on it. Though the majority judgment had held the ECP to account, only Justice Jamal Khan Mandokhail pointed to the electoral body’s failings.
Justice Mandokhail – part of the minority who believed PTI was entitled to reserved seats – said that the presiding officers and returning officers failed to perform their duties in accordance with the law and constitution during the February 2024 general election.
He challenged the opposing counsel, Makhdoom Ali Khan, by asking: “Should the Supreme Court shut its eyes?”
Commenting on the matter, lawyer Abdul Moiz Jaferii flagged what he saw as a glaring lapse in judicial due diligence.
“What I found most amazing was how some of the judges who were not part of the original proceedings had clearly not read the judgment under review. You are seated to determine an error floating on the face of the record.”
“You are extraordinarily doing so without the author judge and many other judges senior to you who were part of the original proceedings. Surely you can read the judgment for yourself and not rely on the arguments of counsel to refresh the most basic principles of the case for you,” he added.
Observers also noted that the government’s side appeared in a rush to tie up loose ends. Counsels for the PML-N, PPP and ECP all fell in line behind the arguments presented by Makhdoom Ali Khan, despite the original verdict’s criticism of the ECP’s conduct.
Insiders suggest that Justice Aminuddin Khan’s upcoming Hajj might be behind this urgency. There is speculation that the ruling coalition is keen to see the matter settled before his departure.
On the other side of the aisle, PTI and its allied Sunni Ittehad Council (SIC) have engaged four senior counsels to defend the majority ruling. SIC’s Faisal Siddiqi is slated to present his arguments today (Tuesday).
Legal circles believe that the current impasse stems from the ECP’s misreading of the Supreme Court’s January 13 verdict, which declared PTI’s intra-party polls illegal.
Besides, the court under former chief justice Qazi Faez Isa also came under fire for dragging its feet on PTI’s review petition – a delay that many say left the political field clouded in uncertainty.
Even the majority judgment had flagged constitutional tensions at the heart of the matter.
The majority verdict had quested how the matter of intra party elections – a matter of internal governance of a party – could trump the fundamental rights of citizens to vote and of political parties to effectively participate in and contest elections by obtaining a common symbol for their candidates, guaranteed under Articles 17(2) and 19 of the Constitution.
