RESERVED seats for women and non-Muslims in our legislatures have been a long-standing feature of Pakistan’s political system, but they had never brought the state close to constitutional breakdown — until now. Not only are the three branches of the state bitterly poised against one another, there are visible fissures within each branch as well, most notably the judiciary.

It is unprecedented that three sitting judges of the Supreme Court, including the then-chief justice, should openly call the July 12 majority order passed by the full court, unconstitutional, besides declaring it non-binding on the executive and constitutional institutions: read ECP.

The Election Commission of Pakistan has not fully implemented the majority court order, despite repeated court warnings. Parliament has passed the Elections (Second Amendment) Act, 2024, to neutralise the order and the speakers of the National Assembly and assemblies in Punjab and Sindh have written letters to the ECP to defy it and distribute the remaining reserved seats among the PML-N, PPP and JUI-P as originally decided by the ECP in its order of March 4, which was upheld by the Peshawar High Court some days later.

At stake are 77 reserved seats for women and non-Muslims in the National Assembly and three provincial assemblies out of a total of 226 such seats. The remaining 149 seats have already been distributed to various political parties in proportion to their general seats in the respective assemblies.

The July 12 order is very much a legitimate Supreme Court order. On the other hand, the Elections (Second Amendment) Act, 2024, is a legitimate law.

A large number of independent legislators — those not affiliated with any political party — in the National Assembly and three provincial legislatures were, in fact, elected, for all practical purposes, as PTI legislators because their names were widely advertised on the PTI’s social media as party candidates ahead of the February polls. They had to contest the election as independent candidates because the ECP had denied them, on technical grounds, the facility to contest the polls on the party’s election symbol, a decision which was upheld by the Supreme Court.

Despite these well-known facts, some provisions of the Constitution such as Articles 51(6)(e) and 106(3)(e) and relevant sections of the Elections Act, 2017, do not support the claim of either the Sunni Ittehad Council or the PTI. The SIC had not submitted a priority list of its Assembly candidates nor had its nominees for the reserved seats submitted their papers as required under the Elections Act, 2017 (it had no candidates either on the general or reserved seats). The PTI and its reserved seats’ candidates tried to submit its priority list and their nomination forms respectively but the ECP refused to accept them as the PTI leadership was not recognised by it because of objections regarding the party’s intra-party elections. The PTI would have had a better chance of circumventing these objections had it constituted its own parliamentary parties within the assemblies and inducted independent candidates into its fold within the constitutional deadline of three days from the notification of their election. The PTI, instead, preferred to use the SIC platform, which almost all the judges in the full court agreed had no locus standi to claim the reserved seats.

The court in the July 12 majority judgment de­­cided to rise above these technicalities and legal requirements and, instead, invoked the doctrine of ‘complete justice’. The judgment allowed independent members to once again exercise their op­­tion to join a political party of their choice — four months after the three-day deadline prescribed in Article 51(6)(d) and (e). The doctrine of ‘comp­l­­ete justice’ resonated with the wish of many, in­­c­luding this writer but, to many, it did not conform to specific constitutional and legal provisions.

The ECP and a majority of parliament disagreed with the order on these grounds and several review petitions were filed with the Supreme Court against the short order. What made matters worse was the delay in announcing the detailed reasons for the verdict and delaying the hearing of the review petitions on the grounds that the judges were to go on their annual vacation. In view of the fact that the case was of critical national importance and time-sensitive, many agree that the honourable judges should have rescheduled their vacations to announce the detailed reasons and dispose of the review petitions. This is what the then chief justice reportedly suggested in the three-member Practices and Procedures Committee but he was outnumbered. Even requests for clarifications, which the short order had invited and the ECP had filed, had to wait for over two months to get a response from the majority judges.

The invoking of the ‘complete justice’ doctrine available in the “constitutional arsenal” — to use Justice Mansoor Ali Shah’s words — seems to have played a key role in provoking the government to pass the 26th Amendment.

Where do we go from here?

The July 12 order, despite some judges’ dissenting notes and declaration of the order as unconstitutional, is very much a legitimate Supreme Court order unless the court amends it after hearing the review petitions. On the other hand, the Elections (Second Amendment) Act, 2024, duly passed by parliament, is a legitimate law unless it is declared otherwise by a competent court, or if parliament chooses to amend it. Despite the fact that eight judges have held in their response to the ECP that a law passed by parliament after the Supreme Court order can’t have retrospective effect and therefore can’t neutralise the apex court’s order, this two-way communication may not be taken as a verdict by the apex court and therefore the issue appears to still be open to interpretation.

While much water has flowed under the bridge, the honourable Supreme Court and its soon-to-be-formed constitutional bench will have to find a way to resolve the issue, as the order of the Supreme Court and the law passed by parliament compete for superiority.

The writer is president of the Pakistan-based think tank Pildat.

X: @ABMPildat

Published in Dawn, November 2nd, 2024