Islamabad: the main lawyer Makhdoom Ali Khan informed Monday to the Constitutional Bank (CB) of the Supreme Court that article 187 of the Constitution, the basis of the majority judgment of July 12, 2024, which granted relief to the PTI in the case of the reserved seats, does not empower the Apex court to grant a relief to a part that was not before before.
“Article 187 is a provision that allows the Supreme Court to decide a matter in a complete sense, but not resolve a dispute or a relief of granting to a part that is not before the Court,” he argued that the lawyer represented the candidates who were denied the reserved seats after the Pakistan Electoral Commission (ECP) annulled a notification that had assigned special seats for the women for them.
“Sometimes, in a dispute, the court can mold relief for one of the parties in competition, since there may be a situation in which a part is entitled to more relief,” added the lawyer.
Judge Jamal Khan Commandkhail, a member of the 11-Jewish CB who listens to a set of review requests against the majority judgment of July 12, questioned: “If an issue is related to public importance, should the Supreme Court not to exercise this provision in exceptional circumstances or to continue restricted as a civil court to exercise its jurisdiction?”
In addition, he asked if the Supreme Court could “close their eyes” when the officers who presided did not perform their duties in accordance with the law. He pointed out that, regardless of whether someone was part or not, people should not be deprived of their rights simply because they did not approach the Court.
The lawyer cited Judge Yahya Afridi, now president of Pakistan, who in his note declared that although the Supreme Court has the power to interpret the Constitution, he does not have the authority to rewrite it.
Judge Afridi had warned that trusting article 187 to grant relief to a part not before the court could create a dangerous and high -reach precedent. He risked to undermine due process and potentially led to judicial overreach. Therefore, such powers should be exercised only in convincing and exceptional cases to reinforce the rights of a injured party, while remains within the constitutional limits, he emphasized.
The lawyer argued that nowhere can present a petition under article 187 of the Constitution before the Supreme Court, and recalled that the jurisdictional requirements of articles 184, 185, 186, 186a or 188 must be satisfied for the Supreme Court to act.
He pointed out that the Supreme Court has constantly argued that electoral disputes must be treated as civil disputes, where the burden of the evidence lies in the challenger.
Judge Musarrat Hilali observed that the Sunita Ittehad (sic) council probably had only one member in the National Assembly and questioned why reasons were granted to the seats reserved through the judgment of July 12. She asked if the court acted on some kind of suo motu.
Judge Hilali also recalled that the majority sentence had adopted an independent position to provide relief to a part, PTI, which was not before the Superior Court of Peshawar, and that he had only transferred a request before the Supreme Court to act as an intervener for assistance.
The lawyer argued that article 187 was referenced 10 times in the majority verdict as the basis for invoking the doctrine of constitutional fidelity and to do full justice.
However, he emphasized that article 187 is not a jurisdictional provision, but rather a procedure that allows the court to complete justice in matters that are already pending before him. Consequently, the case must first appear before the Supreme Court under articles 184 to 185, 186, 186a or 188. Article 187, he said, simply allows the Court to exceed obstacles and procedural technicalities in such matters.
Judge Hilali also questioned the status of PTI, which was not allowed to dispute the general elections under a symbol of common elections, asking if he was still a political party despite the restrictions he faced.
Judge Aminuddin Khan, who directs the CB of 11 judges, recalled that the dispute over the reserved seats was based on the amount of seats acquired.
The lawyer argued that none of the 80 candidates in question had approached the Supreme Court, however, the majority sentence granted seats reserved to the 80 PTI candidates, after the legal and constitutional deadline had approved, although PTI was not a petitioner before any legal forum.
He pointed out that these candidates could have joined the PTI or approaching the Court, but instead decided to join the SIC. Therefore, they were not petitioners, and the assignment of seats to them was clearly against constitutional provisions.
He also noted that the 13 judges of the July 12 judgment had unanimously held that a political party that did not challenge the general elections or secured any seat had no right to reserved seats.
The SIC, the lawyer argued, did not play the general elections for any seat. Its president ran as an independent candidate. The 80 candidates in question joined the SIC, which although, although a registered political party did not play or won any seat in the general elections.
The lawyer also recalled that according to article 225 of the Constitution, the electoral disputes must be raised only through an electoral request, however, the notification of the ECP that assigned seats reserved for the petitioners was annulled.
Faisal Siddiqi, the SIC lawyer, will begin his arguments on Tuesday.
Posted in Dawn, May 27, 2025
