ISLAMABAD, OCT 22: Chief Justice of Pakistan Qazi Faez Isa on Tuesday said that the implementation of the Supreme Court’s July 12 verdict in the reserved seats case was not binding since the appeals against it were not decided.
In its July 12 short order, the Supreme Court had explained that the 41 returned candidates — of the total of 80 MNAs — were and are the returned candidates of the PTI and thus members of its Parliamentary Party in the National Assembly for all constitutional and legal purposes.
The decision was appealed by the PML-N, PPP and Election Commission of Pakistan (ECP). The appeals are still pending and have not been fixed for hearing.
Through its first clarification issued on Sept 14 — the day when the government was supposed to lay the constitutional package in both houses of parliament, but could not do so — the apex court had reprimanded the ECP for not implementing the July 12 judgement in the reserved seats case.
Last week, the Supreme Court reiterated that the amendments made in the Elections Act 2017 could not undo its July 12 judgement. Justice Mansoor Ali Shah, who led an eight-judge majority in the 13-member full court, explained that amendments made in the Act through the Elections (Second Amendment) Act, 2024 after the release of the July 12 short order “will have no bearing and therefore the ECP was bound to implement the judgement passed by the Supreme Court, in its letter and spirit, without seeking any further clarification”.
This was the second clarification that came from the bench following the first that sparked a minor controversy when CJP Isa asked how it could have been issued when the matter was not on any cause list. This time around as well, the top judge took exception over the issuance of the clarification and summoned an explanation from the respective officers of the court.
In his detailed minority verdict issued today on the July 12 hearing, CJP Isa observed: “In constitutional cases too a judgment can be executed, provided it is finally and conclusively decided. The majority’s short order and the majority’s judgment did not conclude the appeals.
“The well-trodden legal path was abandoned by the majority which created unnecessary and avoidable problems. Since the appeals were not finally decided there was no decision which could be stated to be binding, in terms of Article 189 of the Constitution. Similarly, contempt of court proceedings for any non-compliance of the ‘order of the court’, under Article 204 of the Constitution, cannot be initiated. The right of review, which Article 188 of the Constitution grants, was also effectively negated.”
CJP Isa said he was pointing out what he said were the “constitutional violations and illegalities” in the July 12 short order, the detailed verdict and the subsequent two clarifications.
He said the short order had “deviated from how courts have always functioned [and] was novel and unprecedented”.
“The majority set up its own virtual court, permitted the making of ‘an appropriate application’ by the ECP and PTI, and directed that such appropriate application would only be heard by them whilst cloistered in chambers. In doing this the majority of the honourable judges effectively legislated, because neither the Constitution nor any law permits what they did.”
CJP Isa further said: “In effectively legislating, the honourable judges in the majority also contradicted themselves. They stated that the ECP and the PTI may ‘apply to the court’ but then proceeded to state that only the ‘judges constituting the majority’ would hear the ‘appropriate application’. This was not the only contradiction. It has been settled by the Supreme Court that a hearing of a case after it has been decided (which would be a review petition) should be by the same bench and by the same number of judges as had earlier heard the case.”
The top judge said the majority of the bench disregarded the apex court’s precedents, carved out a separate eight-member “court” from the thirteen-member bench, innovated further by not finally concluding the hearing of the appeals, introduced timelines and changed what the Constitution provided.
CJP Isa also said that the majority had not disposed of the case since they had permitted the filing of applications by the ECP and the PTI, something which he said also kept the appeals against the verdict pending.
The CJP also pointed out issues with how the first clarification was issued, adding that through its issuance without sending notices to the parties and hearing them, the majority judges had “effaced several millennia of jurisprudence”.
“No provision of the Constitution, law or precedent was cited to support that there was ‘no legal requirement’ to hear the parties. The mandatory requirement of openness and transparency were also transgressed. Secrecy and one-sided determinations are the harbingers of suspicion and mistrust, and undermine the trustworthiness and standing of courts,” he added.
The chief justice said that the detailed verdict and first and second clarifications “cannot be stated to have been issued by a ‘court’; the forum which issued them was coram non judice (decided by a court that lacks authority). Moreover, such forum did not comply with the rudimentary principles of natural justice, of due process and of fair trial. Therefore, with great respect, the same do not constitute legal orders and are of no legal effect. They also cannot be categorised as a ‘decision’ of the Supreme Court (in terms of Article 189 of the Constitution), resultantly, they need not be followed or acted upon”.
