Judge Jamal Khan Commandkhail questioned the PTI’s decision to merge with the Sunita Ittehad Council during last year’s elections such as the Constitutional Bank (CB) of the Supreme Court (CB) heard the supplications of revision against the ruling last year that had declared the main opposition party eligible for the reserved seats.
In his brief welcome order of July 12, 2024, eight of 13 judges ruled that 39 of an 80 -mna list were and are the returned candidates of the PTI, which establishes it to emerge as the largest party in the National Assembly.
However, the ruling had not been implemented by the National Assembly, while the Pakistan Electoral Commission (ECP) had raised some objections. Review requests against order SC had been presented by the PML-N, the PPP and the ECP.
A CB of 11 members led by Judge Aminuddin Khan resumed the hearing today after Judges Ayesha A. Malik and Aqed Ahmed Abbasi had dismissed the review requests on the first day of hearings.
The live CB transmitted its procedures for the first time today, after accepting SIC’s request for her last week. The audience was broadcast live on the YouTube channel of SC.
The other 10 members of the bank were Judges Jamal Khan Commandkhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan, Shahid Bilal Hassan, Muhammad Hashim Khan Kakar, Salahuddin Panhwar, Aamer and Ali Najafi.
During today’s hearing, Judge Commandkhail observed that it was not a political party that challenged the elections, but to its candidates.
In addition, he pointed out that the problem of the reserved seats would not have arisen if the independent candidates backed by PTI did not join the SIC, a decision that the party of former Prime Minister Imran Khan took after the SC revokes the SC only one month before the surveys.
The main lawyer Makhdoom Ali Khan appeared on behalf of the PML-N candidates and PPP affected by the July 2024 ruling and concluded his arguments.
The ECP lawyer, Sikandar Bashir Mohmand, and PML-N’s lawyer, the lawyer, Haris Azmat, also informed the court that they had submitted their written answers. PPP Senator Farooq H. Naek said he would present the response of his party tomorrow. Subsequently, the audience was postponed until tomorrow (Tuesday).
Initially, a full CB of 13 members led by Judge Aminuddin took the replicas of review on May 6. However, Judges Ayesha and Abbasi declared that the requests are inadmissible and were not part of the subsequent procedures, with the chief judge of CB who noticed that they had voluntarily retreated.
Judge Ayesha had formally complained to the president of the Supreme Court of Pakistan (CJP) Yahya Afridi about his dissident order that did not go up to the SC website.
In his opinion, he had criticized ECP for not implementing the previous order, observing that “not only would the authority of the Supreme Court undermine, but also erode the fundamental values of democracy itself.”
The Sunita Ittehad (sic) council, which allied with the PTI during the 2024 elections and was part in the case of the reserved seats, had asked the bank to postpone the audience until the challenges of the 26 amendment were decided and included the judges who had heard the original case.
However, the CB dismissed those pleas, with Judge Aminuddin observing that the review requests could be heard even by a bank smaller than the original bank after the 26th amendment.
The audience
At the beginning of the hearing, Makhdoom began to present his arguments, Judge Hilali wondered how the sic could be eligible for reserved seats.
“How can independent legislators join a political party that is not in Parliament? SIC participated in the elections?” He asked, in what the PPP lawyer replied that the party had not participated in the polls and that even its Sahibzada president Hamid Raza had played as an independent candidate.
Judge Commandkhail then observed that the sic was not eligible for reserved seats. “The Ittehad Sunnita Council could have become a parliamentary party, but has no right to reserved seats.”
Makhdoom said that the legislators chosen in the reserved seats had been denotified without any prior notice, in which Judge Mazhar said that the SC had knocked down the notifications of the ECP.
The lawyer reiterated that affected legislators should have been alerted about beforehand. He argued that the ruling did not address article 255 of the Constitution, according to which “no election to a house or a provincial assembly will be called in question, except for an electoral request presented to said court and in the manner that may be determined” by a law of Parliament.
Judge Commandkhail asked how article 255 applied in this case, highlighting that the matter belonged to the reserved seats, which will be assigned based on the proportional representation in Parliament.
In Makhdoom saying that a complaint related to an error in the nomination documents should have been taken before a court, Judge Commandkhail observed that the case was not under the jurisdiction of the Superior Court of Peshawar if the lawyer’s arguments were going to be accepted.
Makhdoom said it was the responsibility of the SC “to correct an error” like any decision “contrary to the Constitution and the laws would be defective.” Judge Commandkhail commented: “If most judges consider that the ruling was correct and the supplications of review no, what would happen in that situation?”
At this point, the Bilal Judge asked if the PTI was part of the case, wondering: “How can a part that is not a respondent [in the case] Are they given reserved seats?
Makhdoom replied that such a political party could not get reserved seats. CJP Aphridi also observed that the PTI was not a respondent in the case.
Here, Judge Commandkhail observed: “We also have to review the role of the ECP at that time. In my opinion, the ECP did not fulfill its responsibility. [While] The allocation of the reserved seats or is not a problem, the role of the electoral commission must also be analyzed. “
The judge declared that in his minority judgment, “there was no formula for an average path.” He pointed out that he examined the available records all night, according to which 41 candidates had written PTI in their certificate and affiliations of the party.
Here, Judge Afghan observed: “The Constitution cannot be rewritten. Judge Commandkhail and Judge Afridi have also written that complying with the legal requirement of a timeline is mandatory.”
Makhdoom then argued that article 178 of the Constitution had no “jurisdiction.” “Complete justice is a provision of the Constitution, under which the SC completes justice in a dispute. The law cannot be used to provide relief to a third party that is not a defendant in the case,” he argued. Judge Commandkhail joked: “This is the Supreme Court, not a civil court.”
In Makhdoom giving a hypothetical situation of a dispute between an owner and a tenant, the judge replied that the matter would be of a personal nature and emphasized that the current case was the “right of people to vote.”
As Makhdoom cited a sentence of the CJP Aphridi, Judge Commandkhail said that the superior judge had requested the right of the SC to provide full justice to be used with caution.
At one point, Judge Commandkhail commented: “A political party does not end up not having an electoral symbol. A political party does not dispute the elections but its candidates.
“An electoral symbol is for public consciousness. Someone cannot prevent it from running for elections because it does not have an electoral symbol.”
The judge also pointed out: “If the independent candidates had remained in the PTI instead of joining the sic, this problem would not be there today. If the sic had played the elections on their symbol of the party, then the problem would not have emerged.”
Pull and loosen on reserved seats
In his detailed verdict on the case of the reserved seats, written by the senior judge of Puisne, Judge Mansoor Ali Shah, the SC had observed that the numerous “illegal acts and omissions” of the ECP had “caused confusion and prejudice to PTI, their candidates and the electorate who voted for PTI.”
He had also punished ECP for not fulfilling his “role as a guarantor and impartial administrator” of electoral processes.
On September 14, 2024, the day that the Government was supposed to establish the 26th amendment in both Chambers of Parliament, but could not, the Supreme Court, through a clarification, had rebuked the ECP for not implementing its ruling of July 12 in the case of the reserved seats.
Later, on October 18, in another clarification, Judge Shah reiterated that the effect of an amendment carried out in the 2017 Elections Law in August of last year could not get the verdict of cases of reserved seats.
The bill, entitled “Elections Law (second amendment), 2024”, was seen as destined to avoid the verdict of the Apex court on the case of the seats reserved by prohibiting independent legislators from joining a political party after a stipulated period.
A CB of six judges of the Apex court was established to assume the PTI request challenging those adjustments to the electoral laws in December 2024. A separate supplication of the PTI against the ruling of January 13, 2024 denying that its electoral symbol is also pending before SC.
More to follow
