“For detailed reasons to be recorded later, subject to amplification or elucidation as may be deemed appropriate, by a majority of 7, all civil review petitions are allowed and the impugned majority judgment dated 12.07.2024 is set aside.
“As a consequence thereof, Civil Appeal Nos 33 of 2024 and 334 of 2024 filed by the SIC [Sunni Ittehad Council] are dismissed and the judgment rendered by the Peshawar High Court (PHC) is restored,” said a short order issued by a 10-member CB, led by Justice Aminuddin Khan.
Apart from Justice Khan, the majority order was signed by Justice Musarrat Hilali, Justice Naeem Akhter Afghan, Justice Shahid Bilal Hassan, Justice Muhammad Hashim Khan Kakar, Justice Aamer Farooq and Justice Ali Baqar Najafi.
On January 13, 2024, a three-member SC bench upheld the Election Commission of Pakistan’s (ECP) December 22, 2023 order declaring the PTI’s intra-party polls null and void.
As a consequence of the SC verdict and its “misinterpretation” by the ECP, a majority of the PTI candidates had to contest the February 8, 2024 general elections as independents.
Eighty such independent candidates reached the National Assembly and later joined the SIC in an apparent bid to claim reserved seats for women and minorities. The ECP, however, refused to allocate the seats to the party, a decision that the SIC challenged in the Supreme Court.
On July 12, 2024, a full bench of the apex court through a majority of 8 to 5 resurrected the PTI as a parliamentary party, noting that 39 of the lawmakers who had submitted certificates of their affiliation with the PTI along with their nomination papers were already PTI lawmakers.
The SC ruled that the remaining 41 lawmakers who had not submitted the affiliation certificates at the time of nomination papers’ submission could do that now within a period of 15 days.
The ruling coalition later filed a review petition against the SC ruling. In May this year, an 11-member CB took up the review petitions filed against the SC’s majority order.
The CB unveiled its short order on Friday. In view of the order, nearly 80 reserved seats in national and provincial legislatures will be distributed among parliamentary parties except the SIC.
The judgement has paved the way for the ruling coalition to get two-thirds majority in parliament, which will have significant implications for national politics.
However, some experts believe that the short order has further dented the credibility of the post-26th constitutional amendment judiciary, which is already facing a battle of perception.
The order has also ended the chance for the largest political party — the PTI — to enter parliament. The order will also affect the Senate election in the Khyber-Pakhtunkhwa (K-P) Assembly. There are reports that the PTI-SIC government in the K-P is also in danger in view of the decision.
The majority decision did not specify as to how the reserved seats will be distributed among other parties and what will be the implications of giving these seats to the parties.
Some lawyers believe that the short order has also weakened democracy in the country. They said the majority judges through the July 12 order had tried to restore democracy but their efforts were wasted by their brother judges.
Commenting on the short order, SIC’s lead counsel Faisal Siddiqi said, “This judgment shows the dark ghost of [Justice Qazi] Faez Isa is alive and kicking. The journey from stealing the general election to stealing the reserved seats is complete.”
Barrister Asad Rahim Khan said the CB showed “remarkable consistency and issued yet another terrible verdict”. For the first time in our history, he said, political parties that lost the election will be distributed the winner’s seats, despite the fact that no law in the country allows this.
“Instead, we have a 12-member review bench – one mostly cleansed of judges from the original bench, in complete violation of the Supreme Court Rules – holding that random technicalities are enough to defeat the electorate, and upend its representatives,” he added.
“In another black swan event, this 12-member review bench has overturned the verdict of a 13-member bench! But black swans are the new normal after the 26th amendment.
“This is but the latest tragedy in a year-long judicial surrender. A rejected regime will now be handed a two-thirds majority, for tearing up the Constitution in earnest,” he added.
Abdul Moiz Jaferii Advocate stated that this decision is an unsurprising erosion of democratic principles through flawed and engineered judicial processes. It follows other corrosive decisions that started several years ago, and peaked at the January 13 judgment by the Justice Isa-led bench.
“As we come down the other side of the mountain, there are several other such corrosive decisions that I am sure will come after it,” he said. “We can only hope that every such point on the way down will be recorded and live streamed. I would like to thank my lords for putting this on the record.”
He said there should be a permanence to the process the judiciary is participating in today, so that it can be taught to the lawyers of tomorrow. “Whether as a warning or as an example to follow — is yet to be determined,” he added.
However, Hafiz Ehsaan Ahmed Khokhar said that the Supreme Court is a constitutional court tasked with interpreting — not rewriting — the Constitution. Its jurisdiction is circumscribed by legal limits.
“Today’s majority decision has respected those limits and reaffirmed the binding character of Articles 51 and 106 of the Constitution.
“It rightly held that only political parties that fulfill the pre-election requirements, contest elections under a common symbol, submit priority lists within the prescribed period, and secure at least one general seat, are entitled to reserved seats.
“This judgment not only restores constitutional clarity and electoral fairness but also marks a critical turning point in re-establishing legal discipline and institutional balance in Pakistan’s democratic framework,” he added.
Some senior lawyers said the review order has been accepted by a majority of 10 to 2 judges.
The order
The order said one of the members of the larger bench — Justice Salahuddin Panhwar — for certain reasons, recused himself from hearing the case and contributed his separate note. Therefore, the bench was reconstituted with all the available members of the CB.
“Initially this CB was constituted for hearing of the aforesaid review petitions by 13 Hon’ble Judges of this court but two of them — Justice Ayesha A Malik and Justice Aqeel Ahmed Abbasi — on the first date of hearing have dismissed all the review petitions”
The order also said Justice Jamal Khan Mandokhail, for reasons to be recorded later, partly allowed the review petitions and maintained his original order with regard to 39 seats but reviewed the majority judgment to the extent of 41 seats.
“Whereas Justice Muhammad Ali Mazhar and Justice Syed Hasan Azhar Rizvi, for reasons to be recorded later, also reviewed the judgment and allowed the review petitions with the rider that since the factual controversy or disputed questions of facts neither could be resolved by the PHC nor this court in original or review jurisdiction, therefore, directions are issued to the ECP to examine and consider the nomination papers/declaration and other relevant documents of all 80 returned candidates by means of de novo exercise with regard to their affiliation and take appropriate decision in accordance with law and applicable rules for allocation of reserve seats within 15 days from receiving the copy of this order.”
Interestingly, both the judges reviewed their own opinion. They had endorsed the majority decision of July 12.