• In dissenting note, Justice Isa holds clarifications issued by eight judges ‘have no legal effect’
• Questions decision to exclude remaining members of the bench from subsequent proceedings

ISLAMABAD: Expressing his obje­c­tions over the clarifications issued by the majority of judges in the reserved seats case, Chief Justice of Pakistan Qazi Faez Isa on Tuesday ruled that the orders were “of no legal effect” and need not be followed or acted upon.

The two clarifications, issued by the eight judges on Sept 14 and Oct 18, had created a virtual separate court while cloistered in chambers to decide the applications of PTI and the Election Commission of Pakistan (ECP), the CJP noted.

By doing so, the majority judges effectively legislated, as neither the Constitution nor any law permits such actions, the CJP bemoaned in his dissenting note.

Led by senior puisne judge Justice Syed Mansoor Ali Shah, the eight-judge majority of the 13-judge full court had on July 12 decided in favour of the PTI to resolve the contentious issue of reserved seats.

In his 14-page note, CJP Isa expressed hope that his distinguished colleagues in the majority would reflect on their actions and correct their mistakes to ensure that Pakistan is governed in accordance with the Constitution.

Notably, he wrote, no party or counsel during the hearing suggested the course of action that the majority judges adopted, and neither their short order nor detailed judgement provided an explanation to justify it.

Thus, the majority’s clarifications cannot be stated to have been issued by a court; the forum which issued them was coram non judice. Moreover, such forum did not comply with the rudimentary principles of natural justice, of due process and of fair trial.

Therefore, they did not constitute legal orders and are of no legal effect, the CJP emphasised. They also cannot be categorised as a ‘decision’ of the Supreme Court, in terms of Article 189 of the Constitution and, resultantly, they need not be followed or acted upon, he observed.

CJP Isa also regretted that the review petitions against the majority’s July 12 short order could not be heard because Justice Mansoor Ali Shah and Justice Munib Akhtar outvoted him on the three-judge committee formed under the Supreme Court (Practice and Procedure) Act, 2023.

He noted that Justice Shah had deviated from his earlier decision in the Jurist Foundation case, where a challenge to Gen Qamar Javed Bajwa’s appointment as the army chief was made. That petition was neither allowed nor dismissed; instead, the tenure of Gen Bajwa was extended by six months, which constituted legislation.

Personal ambition

CJP Isa regretted that the majority judges, by effectively legislating, contradicted themselves by stating that the ECP and PTI could apply to the court, yet proceeded to limit the hearing to only the majority judges for the ‘appropriate applications’.

This was not the only contradiction, he recalled, as the Supreme Court had previously established that the review case should be heard by the same bench and the same number of judges as the original case.

While judges may decide or dispose of a case according to their understanding of the Constitution and the law, it is crucial that the case is indeed decided or disposed of. Allowing appropriate applications from the ECP or PTI implied that the case remained unresolved and effectively kept the matter pending.

Thus, the majority abandoned the well-trodden legal path, creating unnecessary and avoidable problems. Since the appeals were not finally decided, there was no binding decision under Article 189 of the Constitution, emphasised Justice Isa. Similarly, contempt of court proceedings for any non-compliance with a court order under Article 204 could not be initiated, the note highlighted.

Referring to the September 14 clarification by the majority, CJP Isa reminded that a ‘purported order’ was uploaded on the SC website without informing him or the other judges in the minority, thereby bypassing the registrar’s office. This occurred on a Saturday after the registrar had left, he regretted.

The majority’s clarification, the note stated, was passed without first listing the cases, issuing notices to the parties, or notifying the attorney general. The title of the clarification indicated it was ‘in chambers’.

However, not all eight judges were present in the Supreme Court premises, and some were not even in Islamabad. By failing to issue notices, provide an opportunity for a hearing, and conduct the hearing in open court, the established rules of natural justice were transgressed, violating Article 10A, which ensures procedural fairness and the right to a fair trial, it added.

Likewise, the noted said, the majority’s clarification was incorporated into their judgement in paragraph 58, although the title of the ‘order’ was changed to ‘clarification’. The judges appeared to recognise their noncompliance with Article 10A, as they stated in their judgment that “there was no legal requirement nor did we find it necessary to hear parties before clarifying our own order”.

“To say there was no legal requirement to hear the parties disregarded innumerable judgements of the apex court,” the CJP observed, adding that it had been laid down as principle of law by the superior courts that in every statute, principle of natural justice of hearing a person… will be deemed to have been embodied.

One-sided determinations

The CJP regretted that the mandatory requirement of openness and transparency was also transgressed.

The majority’s clarification was followed by another clarification, which was similarly uploaded on the SC website on Oct 18, without a cause list or informing the parties, and without providing an opportunity for a hearing.

The circumstances of when and where the majority judges met remain unclear, he noted.

The title of the majority’s clarification, stating ‘In Chambers at Islamabad and Karachi’, implied simultaneous meetings in two cities.

The majority’s judgement indicated they were ‘parting with the judgement’, but almost a month later, on October 18, they invalidated their own parting in the clarification.

“In my 46 years of association with the law, I have not come across such novel methodology, nor learnt of such practice being in vogue in any other country governed by the rule of law,” the CJP bemoaned.

Moreover, the majority’s short order did not state that an implementation bench had been constituted. Even if it is assumed that this is what the majority intended, clarifications could not be issued by such a purported implementation bench.

CJP Isa recalled that while heading the three-judge committee, he proposed that the present appeals (in the reserved seats case) should not be heard by those who might be considered beneficiaries or affectees of the constitutional amendment then being discussed, which aimed to make the office of chief justice a tenured three-year post.

The potential beneficiaries and affectees would have included himself and five judges, thus excluding them from the bench. However, Justice Shah and Justice Munib Akhtar did not agree, leading him to next propose that the full court hear these appeals.

Justice Mandokhail’s dissent

Meanwhile, Justice Jamal Khan Mandokhail, in his dissenting note, opposed the majority decision to grant an opportunity to 41 independently elected candidates, who had exercised their constitutional right and joined the Sunni Ittehad Council (SIC).

He pointed out that neither the Constitution nor the Elections Act allow them to join another political party, especially within a period of 15 days.

Justice Mandokhail noted that there is no dispute that these 41 candidates did not file declarations regarding their affiliation with the PTI or any party ticket nominating them as its candidates.

The declarations in the nomination papers of these 41 candidates indicated that they were independents, a status that was unanimously accepted by the Supreme Court.

Justice Mandokhail observed that there is no evidence to suggest that the candidates were compelled, coerced, pressured, or misled regarding the law, nor was there any peculiar circumstance beyond their control that would have led them to declare their status as independents.

In light of these circumstances, he argued, there is no reason to consider them as PTI’s nominated candidates.

Published in Dawn, October 23rd, 2024