Reserved seats’ case was indeed one of the most fiercely argued cases in our Supreme Court’s recent history, more so by honorable judges of the bench than lawyers. The bench was clearly divided between two distinct approaches, constitutional justice by restricting the court’s scope within the written text of the constitution while the other group adopted the causational justice approach, proclaimed as complete justice under Article 187 of the constitution.
Article 187 as recorded in the constitution states; “Article 187 grants the Supreme Court the authority to issue directions, orders, or decrees deemed necessary for achieving complete justice in any case before it. This expansive power highlights the Court’s pivotal role in ensuring fairness and equity”.
For one, let us ignore the plethora of constitutional/legal flaws, deviations, and violations pointed out by some of the most revered names in our legal fraternity with respect to reserved seats’ judgment. Let us also delete the entire constitution and assume Article 187 as the whole to analyze if the said judgment even reflects complete adherence to Article 187.
Honorable Justice Ather Minallah, while addressing advocate Salman Raja during the last day’s proceedings of the case, remarked twice “You are shy of telling the complete truth, you are shy of telling complete truth”. Let me tell the complete truth, Justice Ather then proclaimed, “What happened to PMLN during the elections of 2018 has happened to PTI in the elections of 2024”. If we accept his lordship’s remark as the complete truth, then it becomes natural to expect that complete justice shall be in complete compliance with the complete truth.
In view of his lordship’s own remarks, putting all constitutional guidelines aside, even if we accept reserved seats’ judgment as justice based on the principle of “fairness” it still falls short on the principle of “equity” as provided in article 187, copied above. It is evident that the judgment has failed to equate “justice of fairness” delivered to PTI for the 2024 elections and denied to PMLN for the elections of 2018. The judgment is also grossly incomplete in view of the complete truth as proclaimed by an honorable judge. Hence, the reserved seats’ judgment neither conforms to Article 187 in entirety nor does the judgment qualify as complete justice in spirit.
Another paradox of this judgment, constructed under the pretext of complete justice, is setting aside judgments of the election commission of Pakistan and the five members’ larger bench of the Peshawar High Court. While both forums had refused to recognize the claim of “Sunni Ittehad Council” with respect to “Reserved seats”, the Supreme Court’s judgment also denies the entitlement of “Sunni Ittehad Council” for the reserved seats. The Supreme Court, seemingly after adopting judgments of the ECP and Peshawar High Court, has simultaneously set them aside, how? Only detailed judgment can delineate. Explanation of the legal quagmire created by this judgment is best left to the constitutional experts. Let us contemplate the possible political consequences of this decision as the subsequent aftermath of the judgment.
While PMLN and PPP have clearly communicated their respective displeasure in response to this judgment, both parties appear to be dissenting on the future course of actions, after PMLN’s announcements made with respect to banning PTI as a political party and initiating a high treason case against Imran Khan, Arif Alvi and Qasim Suri under article-6 of the constitution. Media reports suggest that PPP’s reluctance is cosmetic, as PPP will soon board the ship and sail along PMLN.
The government’s announcement to ban PTI as a political party has given birth to yet another political controversy. Many senior politicians from across different parties have stated, that banning a political party is an undemocratic act. While respecting the opinions of these senior political leaders, I consider these expressions as ostentatious fashion-compliant statements.
For objective analysis, if banning a political party is indeed undemocratic. My two questions for those issuing democratically fashionable statements as self-proclaimed true proponents of democracy would be, is the constitution of Pakistan a democratic document? is the provision of banning a political party included in the constitution? The answer to both questions is an unambiguous yes. Knowing these facts, how can any democratic mind pronounce the idea of banning a political party as undemocratic? To me, the idea of banning a political party is both constitutional as well as democratic, while remaining obedient to the constitution.
However, an important and a must raise question should be, does PTI qualify to be banned as per the criterion laid down in the constitution and laws of Pakistan? If the answer after due process is “Yes”, then a ban on PTI would be constitutional as well as democratic, and if the answer is “No” then the imposition of a ban on PTI would not only be unconstitutional and undemocratic, but also criminal. We as a nation must acknowledge the fact that our only way out of persistent chaos and mayhem is through the constitution and constitution only.
We must also recognize that the government is not the deciding authority to ban a political party in Pakistan. The government can only recommend the imposition of a ban on a political party to the Supreme Court. The government is then required to substantiate its recommendation with irrefutable evidence and convince the Supreme Court, beyond doubt, to earn a verdict in favor of its recommendation of banning a political party.
Henceforth, in my opinion, whether the government succeeds in earning a verdict of the Supreme Court in favor of its recommendation, or the Supreme Court turns down the government’s recommendation as unsubstantiated and frivolous, in both cases, it will be a victory for the constitution, and democracy, in Pakistan.
Sardar Fida Hussain
The writer is the former Secretary General of Tehreek Suba Hazara.
