On 12 July 2024, the Supreme Court of Pakistan delivered its verdict on the distribution of reserved seats for women and minorities after three full court meetings, with a majority decision of 8-5, giving relief to the ‘favourite child,’ who was not even party to the proceedings.
The verdict overturned the Election Commission of Pakistan’s (ECP’s) decision of 1 March 2024, and a ruling by the Peshawar High Court, declaring the distribution of these seats among political parties participating in the 2024 General Election unconstitutional.
The court ruled that the 39 members who had submitted their nomination papers with PTI party tickets would be recognised as PTI lawmakers, as the PTI intra-party elections case did not bar PTI as a political party. Conversely, the 41 members who submitted their nominations as independents were free to join any political party within 15 days by fulfilling all legal requirements.
The court extended the period for joining a political party beyond the constitutional provision of three days, citing “peculiar facts and circumstances” of the 2024 general election without specifying those facts. This decision appears influenced by the court’s favouritism towards a particular political figure, whose party members previously protested by hanging shalwars on the Supreme Court gates during the dharna days. Instead of initiating contempt proceedings, the judiciary allowed this individual to file the Panama case, which led to the removal of an elected prime minister for not taking a salary from his son, rather than for corruption, in 2017.
This case represents an unprecedented judicial overreach, extending the scope of Article 187 in an appellate context and bypassing constitutional and legal norms to favour a particular political entity, which was not a party to the proceedings in the matter of the SIC reserved seats.
It did not stop there, the judiciary tormented PML-N leadership with several cases to strengthen the political position of their favourite child. The only notable decision the higher judiciary made against him was the judgment in Qasim Suri’s case. Otherwise, he always remained a ‘favourite child.’
The judiciary’s favouritism continued as they allowed this individual to address the Supreme Court via video link in the NAB amendments case, a practice typically not permitted. He focused more on the facilities provided to him in jail than on the amendments themselves during this address. The court’s concern extended to the quality of his food and other amenities, including providing a fridge in his cell – a stark contrast to the treatment of other political figures, such as Maryam Nawaz, who was denied basic facilities in jail and was not allowed to talk to her dying mother. An inmate of Adiala Jail has filed an application requesting similar facilities, citing discriminatory treatment.
The Supreme Court’s judgment relied on a misinterpretation of the PTI intra-party elections case decision and did not address the lack of party elections or the threats made to the ECP. The favourite child’s sole objective was to play the victim while leaked conversations of his ministers showed how his party was ‘managing’ courts and trying to derail a deal with the IMF. Even his claim of an American conspiracy to oust him from power proved that he wanted to destabilise the country.
Instead of addressing its fault, it initiated a malicious campaign against CJP Qazi Faez Isa. The decision in the Sunni Ittehad Council’s (SIT’s) reserved seats case also seems influenced by social media threats. The court allowed 39 members to rejoin PTI without any evidence of coercion or influence on their joining the SIC, contradicting the Article 63A judgment, which previously disqualified 25 members for voting against party lines, in favour of Hamza Shahbaz in Punjab.
Justice Yahya Afridi rightly observed that candidates who joined another political party undermined the trust and will of the people. He directed the ECP to hear concerned parties before deciding the allocation of reserved seats. However, the majority judgment requires the ECP to complete all legal formalities within 15 working days, violating Article 51(6) of the Constitution which stipulates a three-day timeframe for joining a political party. The judgment pushed 41 independents to join PTI, disregarding the fact that they had joined SIC without any coercion or influence. Once they had joined, they could not hop parties. If they do, they stand disqualified under the law as they never claimed that they had contested from the platform of PTI at any legal forum. Rather, they maintained that they joined SIC and have every legal right to further their party’s, i.e. the SIC’s objectives.
One should salute the Supreme Court of Pakistan for giving a new definition to Article 187 of the constitution by enlarging its scope to benefit the favourite child who had never challenged the ECP’s decision nor opted to become a party in the proceedings before any forum by accepting it as a fait accompli. The majority judgment announced a silent spectator of the battle between SIC and ECP as the winner. This arbitrary extension of jurisdiction contrasts with the court’s typical restraint in appellate matters.
Further, the judgment did not consider the lawful existence of SIC as a parliamentary party according to the Election Act, as it did not contest the general election. An affidavit submitted by its chairman categorically stated that his party did not participate in the election.
Even otherwise, the SIC does not fulfil the requirements of the law and the Constitution. In its manifesto, it bars non-Muslims from becoming its members and cannot be considered a political party as observed by Justice Yahya Afridi. How can a party that does not allow a non-Muslim to become its member claim reserved seats for minorities? The court rather unjustifiably scooped out the SIC and rewarded its seats to the PTI to avoid any legal and constitutional debate.
The facilitation did not stop there, the Supreme Court directed the members of the assembly to approach them directly in their chambers if any clarification was required for a ‘smooth transition’ from SIC to PTI. What a special treatment, unthinkable for ordinary litigants. The judgment is based on the presumption that all 80 members were candidates of PTI. It would seem that judges have preferred to save themselves from trolling on social media platforms, as social media propaganda is something the favourite child is admittedly very skilled in.
This case represents an unprecedented judicial overreach, extending the scope of Article 187 in an appellate context and bypassing constitutional and legal norms to favour a particular political entity, which was not a party to the proceedings in the matter of the SIC reserved seats.
By extending the time for joining a political party after the election, the judgment has utterly disregarded the Constitution. It has given a ‘creative’ interpretation to the law and the Constitution sitting in the appellate jurisdiction. It is a settled principle of interpretation that law must be read in plain and simple words to understand and interpret the intentions of the legislature. The courts should not add or read the provision in an artificial manner by giving their own definition to the wisdom of the legislature. The judgment is more political than judicial, as Justice (R) Shaiq Usmani observed. The judicial history of Pakistan has shown time and time again that whenever courts stray beyond judicial boundaries, they not only undermine the law but also risk creating political crises.
The writer is a political analyst and an advocate of the high court.
