The Supreme Court’s (SC) recent review decision on the matter of reserved seats is as controversial as it is consequential.
The decision declared the Pakistan Tehreek-e-Insaaf (PTI) not entitled to reserved seats in the legislature and awarded the reserved seats for women and minorities previously assigned to PTI to the ruling coalition instead. In doing so, the SC handed the ruling coalition an unassailable two-thirds majority in the National Assembly and with it the power to amend the constitution.
Given the political forces at play, many observers felt the SC’s decision was predictable. However, it is important to remember that decisions motivated by political alignments still need to be justified through a process of legal reasoning. The reasoning employed in these decisions, in turn, has impacts on both jurisprudence and policy that last much longer than the political considerations that may have motivated the decision in the first place.
In this instance, while a detailed judgment has not been released, the SC’s reasoning may be inferred from the publicly broadcast review proceedings and the arguments presented by counsel representing the review petitioners, including the Election Commission of Pakistan (ECP) and the ruling coalition parties.
So what was the decision based on, and how compelling was the line of reasoning accepted by the court?
The Majority Judgement Under Review
Last year, during appellate proceedings in Sunni Ittehad Council v Election Commission of Pakistan, a thirteen-member bench of the SC awarded PTI reserved seats in proportion to the share of the ordinary seats won by PTI-affiliated candidates in the national and provincial assemblies. As PTI-affiliated candidates had more seats in the NA than any other individual party, as per the relevant statute, they also received the largest number of reserved seats in the NA.
The conclusion reached by the eight-member majority judgment was based on a fairly straightforward line of reasoning.
- Election disputes are not ordinary civil disputes between two private parties. Election disputes concern the will of the people, which is the bedrock of democracy. Pakistan is a constitutional democracy.
- To prevent a miscarriage of justice, in matters of public interest, the SC has the power to do complete justice, i.e., grant relief that has not been prayed for by those before the court.
- Ten judges recognized PTI as a party to the proceedings before the SC.
- As PTI affiliated candidates (the 39 who filed nomination forms with PTI affiliation and the 41 who were forced to file as independents) won the largest number of seats in the National Assembly, the only way for the SC to uphold the will of the people and do complete justice would be to award a proportional number of reserved seats to PTI. If those seats were given to other parties, that would distort the composition of the assembly by making it unrepresentative of the will of the people.
In addition, the majority decision recognized certain well-documented facts regarding the conduct of the ECP prior to the election with respect to the status of PTI candidates. It further held that the bat-symbol decision was misinterpreted by the ECP and wrongly used to strip PTI of its party status and declare its candidates independent. It was recognized that the actions of public functionaries caused prejudice to PTI.
What is a Review before the Supreme Court?
Before assessing the persuasiveness of the review decision, it is first necessary to understand that a review is not the same as an appeal. An appeal is a continuation of original proceedings before a different bench or forum and may be argued on broad grounds, including misapprehension of questions of law, misinterpretation of constitutional provisions, violation of fundamental rights, and miscarriage of justice. In an appeal, there is ample room for rearguing legal and constitutional issues. On the other hand, it is settled law that a review of a judgment of the SC is only warranted in cases where there is an error apparent on the face of the judgment that has a substantial impact on the final outcome of the case. Unlike an appeal, review jurisdiction does not confer a right of rehearing or repeating rejected arguments in decided cases where the court has already given a conscious and deliberate decision on points of law and fact. A judgment can only be reviewed in those rare cases where a glaring error, omission, or mistake has been made by the bench.
Another difference between a review and an appeal is that under Order XXVI Rule 8 of the Supreme Court Rules 1980, as far as practicable, reviews are to be argued before the same judges who delivered the judgment to be reviewed. By precedent, reviews are also heard by a bench of the same numeric strength as the one that issued the judgment. In other words, a review is meant to convince the same judges who made the original decision that their judgment was erroneous in light of narrow considerations. This is very different from a judgment being appealed to a different forum with different judges for broad reconsideration.
In this case, the constitution of the review bench violated the norms of review bench formation, as a smaller bench of ten members issued the decision. Justices Malik and Abbasi dismissed the reviews before hearing, and Justice Panhwar recused himself after expressing a lack of confidence in the bench. Furthermore, the review bench was comprised mainly of new judges and judges from the original minority, while the authors of the original eight-member majority judgment were excluded as not being appointed to the Constitutional Bench (CB) after the 26th Amendment. The bench was led by Justice Aminuddin, who had been part of the two-member minority in the earlier proceedings. As such, the final short order was issued by a bench of ten and a majority of seven.
The review bench tried to justify these irregularities and its own competence by claiming that the 26th Amendment’s creation of the Constitutional Bench meant that established rules for bench constitution were no longer relevant, and only judges appointed to the CB could hear the review. However, this justification conveniently sidestepped the fact that multiple petitions challenging the 26th Amendment itself have been pending for the last year without a hearing. As was argued by Advocate Hamid Khan, those petitions should have been heard prior to the constitutional bench taking up any other matter, but they were not.
Was PTI before the Court?
The primary ground of the various review petitions was that PTI had not filed to become a necessary and proper party to the case in earlier proceedings and had instead filed as intervenors under the wrong provision of the Supreme Court Rules 1980. They claimed that PTI had prayed for reserved seats to be given to the SIC and not PTI itself. Given that PTI had not properly joined as a party or prayed for the seats directly, the court had erred by granting relief in the form of reserved seats to PTI.
However, a perusal of PTI’s application as intervenors in the appellate proceedings shows that the review petitioners’ claim was a disingenuous misrepresentation. PTI’s application comprehensively detailed how PTI-affiliated candidates were disenfranchised by the ECP before and after the bat-symbol judgment, which is why they had to first run as independents and later join the SIC. The application also consistently maintained that the “independent” candidates were in fact members of PTI and that reserved seats should be given to the SIC because PTI’s candidates were entitled to them.
After considering PTI’s application, the majority judgment concluded that PTI was a proper party before the court, actually entitled to the reserved seats.
The majority judgment also held that it was not necessary for any of the individual candidates for reserved seats to be before the court, since the political parties were already before the court. The correct allocation of reserved seats was a right of the electorate and political parties, not just of the nominated individuals. It also went further to recognize that the constitutional right to vote of the entire electorate was at stake and not just the interests of any political party. Thus, the court was not handicapped by technicalities or rules of procedure and had the power to do complete justice for the benefit of the electorate.
As such, the case for review was not built on a new argument but instead on challenging the conclusion that PTI was before the court on narrow procedural grounds that had been found unconvincing by ten members of the original bench. By disregarding the conclusion already arrived at by the majority judgment and rehearing old arguments, the CB contravened the accepted principles of review jurisdiction.
In substantive terms, the CB sided with an argument based on a narrow definition of being a party to the proceedings while ignoring the broader set of democratic rights and principles that the majority judgment recognized as being at stake.
The Nature of Election Disputes & Complete Justice
While the review petitioners focused on the question of whether PTI was properly before the court, for that argument to be determinative, one must first accept the premise that the matter of reserved seats was an ordinary election challenge. One must also believe that such election challenges are civil disputes, which are adversarial rather than inquisitorial in nature, that they are not a matter of public interest, and that the court’s power to do complete justice in such cases is restricted.
Once again, these arguments were rejected by the majority judgment. The majority had held that election cases pertain to collective public interest and are inquisitorial in nature, not adversarial. The court is obligated to protect the electorate’s rights to vote, form political parties, and exercise freedom of speech under Article 17(2) and 19 of the Constitution Therefore, the Court had to exercise its power to do complete justice under Article 187 to undo the effect of unlawful actions, prevent democratic backsliding, and uphold the will of the people.
Despite these matters being considered at length in the majority judgment, counsel for the review petitioners rehashed many of the same rejected arguments and reasserted that election disputes were not public interest matters but rather private civil disputes between contesting individuals, with the burden of proof on the disputing party. As such, they argued that Article 187 did not apply and such disputes ought to be adjudicated per Article 225 of the Constitution with strict procedural requirements. Procedure is the backbone of justice, the CB was told.
In response to these decontextualized and narrow arguments, PTI’s counsel presented a history of “curative jurisprudence” in Pakistan. It was argued that in response to actions undermining democracy and the separation of powers, the SC had in the past used expansive powers to undo the effects of such actions.
The CB refused to engage with these broad arguments and feigned ignorance of the circumstances surrounding the election. Instead, they appeared to adopt the review petitioners’ characterization of election disputes as private litigation. One member of the CB, Justice Hilali, went so far as to assert that the right to vote was not even a fundamental right under the Constitution.
While accepting such a narrow view of election disputes may have been expedient in this case, by doing so, the CB has limited the entire conception of public interest and the circumstances in which the SC can do complete justice, as well as the power of courts to intervene in election disputes in the future.
The Truth of PTI’s Independents
Perhaps the most revealing feature of the proceedings was the review petitioners’ and CB’s repeated assertion that PTI candidates who contested as independents and later joined the SIC had done so of their own free will, unforced by the circumstances of the 2024 election. In other words, they entirely ignored PTI’s application before the earlier appellate bench in which their decision to join the SIC was explained at length.
As highlighted during the hearings, the CB was denying reality; the State and the ECP subjected PTI candidates to widely reported coercion and obstruction during and after the 2024 Election. Nomination papers filed with PTI affiliation in December 2023 were rejected by the ECP’s Returning Officers, forcing other candidates to file as independents. The SC stripped PTI of its bat symbol in January 2024, further legitimizing the ECP’s drive to erase PTI from the election. First, their candidates were declared independent in Form-33s and later notified as independent returned candidates after the election, due to which they had to join the SIC to secure reserved seats.
Members of the CB insisted that this was an entirely unintended misinterpretation of the bat-symbol judgment by the ECP. The CB also questioned whether PTI legally challenged their candidates being declared independent. This was responded to by Salman Akram Raja, who, as a PTI candidate, challenged the ECP’s notification declaring him an independent after the bat symbol judgement and prior to the election in January 2024, before the Lahore High Court (LHC). Instead of ruling on the issue, the LHC referred the matter to the ECP, the very institution whose action was being challenged. Mr Raja, in turn, challenged this before the SC. The SC Registrar’s Office, commonly known to act per the directions of the Chief Justice, rejected the filing, asserting that it was too close to the election to entertain such matters.
But whereas the ECP’s order declaring Salman Akram Raja an independent was found to be unconstitutional and unlawful by the majority judgment, the CB instead wanted to know why Salman Akram Raja had not contested the Registrar’s objections in the final hours before the election. The implication was clear: unless PTI had exhausted every possible remedy, they would be assumed to have consented to becoming independent of their own free will.
The CB has effectively rejected the position taken by ten members of the appellate bench that the bat symbol judgment could not deprive PTI of its right to function as a political party or render its candidates independent, and that, therefore, the ECP had wrongly declared them as independent. The majority judgment had also rejected the fiction that PTI candidates contested as free-willed independents and acknowledged the constraint of circumstances caused by the unlawful actions of the state.
PTI’s counsel repeatedly reminded the CB that factual determinations made by the majority judgment could not be interfered with in review, but to no avail. Allowing a review petition on such broad grounds while denying widely known and documented facts calls into question the finality of the SC’s judgments.
The Imperfect Victim
While PTI’s legal strategy may not have been perfect, the burden being placed on it by the CB throughout the proceedings was clear: PTI had to establish itself as the perfect victim. As is often regrettably the case with certain categories of victims (females and minorities) seeking justice from the courts, if PTI could not prove that it had resorted to every legal remedy available to it and made zero contributing errors, it did not deserve justice, and by extension, neither did the electorate. It was as if before the review even began, the CB had decided to punish PTI.
The CB virtue-signaled, scrutinized PTI’s imperfect legal strategy and admonished it for reputational damage to the court following the bat-symbol judgment (the ECP’s interpretation of which had been repudiated by its primary authors). When PTI referenced the environment of repression they were operating in, the CB pretended as if they did not live in the same country as the rest of us. In one particularly telling exchange, when PTI counsel highlighted that even minors were not exempt from state crackdown, a member of the CB admonished PTI for endangering minors as if they were abducting their own supporters. The gleefully partisan victim-blaming on display made a mockery of judicial propriety and neutrality.
Impacts
It is unsurprising that a CB handpicked by the executive, following a constitutional amendment believed to be motivated in part by overturning the reserved seats judgment, and led by a judge who advised against implementing the majority judgment in his dissent, conducted itself as it did. Judges hearing the matter for the first time in review seemed entirely unaware of the basic premises and conclusions of the majority judgment they were defending. Even judges who had been part of the original majority appeared unconvinced by their own judgment and eager to come to a different conclusion.
While the reasoning behind the short order remains pending, the comprehensively and rigorously argued majority judgment stands overturned. The majority judgment made essential observations regarding the status of PTI after the bat-symbol judgment; the effect of denying a party an electoral symbol; the nature of electoral disputes; the conduct and role of the ECP; and declared the Explanation to Rule 94 of the Election Rules 2017 ultra vires. The fate of all these legal pronouncements is now uncertain. Although ten judges of the court, including its authors, held that the bat symbol was misinterpreted by the ECP, this observation too has been nullified.
After allowing military trials of civilians and executive interference in judicial transfers, in its third act, the CB has directly undermined democracy. Judicial independence and public trust in the judiciary stand further eroded. It is obvious that judicial maneuvering for political expediency continues to make a hash of jurisprudence in the country and earn Pakistan its worryingly low rule of law ranking globally.
