In the backdrop of the SC decision with an 8-5 majority allocating the reserved seats to PTI, the two clarifications issued by the majority judges, and the amendment in the Elections Act by the parliament there was a burgeoning confusion about whether the implementation of the court order and the clarifications were binging on the ECP or not. Another question being asked was in case the ECP does not implement the decision would it invoke contempt of court proceedings against it or not?
That confusion has been decisively removed by the outgoing CJ Qazi Faez Isa besides challenging the constitutional and legal basis of the verdict through his additional note of 13 pages on 22nd October by categorically declaring that the clarifications issued by the majority judges in the reserved seats case did not constitute legal order and were of no legal effect. The order/clarifications given by the eight judges could not be construed as having been issued by a ‘court’ and the forum which issued them was coram non-judice. This legal term means that the forum was neither competent to issue them nor doing so fell under their jurisdiction.
He further contended that the forum did not comply with the rudimentary principles of natural justice of due process and fair trial as such the same did not constitute legal order are of no legal effect and could not be categorized as a decision of the court in terms of Article 189 of the constitution. He asserted that compliance with the order of the court under Article 204 of the constitution could not be initiated as the right of review granted by Article 188 was also effectively negated.
Is it not strange that without deliberating on the review petition which is supposed to be taken up by the same bench which originally heard the case, the eight judges have tried to foist their own opinion pre-maturely? Until and unless the court hears the review petition the verdict cannot be taken as final and binding on the concerned quarters.
The concluding remarks by the CJ indeed put the matter into a nutshell. “I consider it my duty to point out the constitutional violations and illegalities in the majority’s short order of 12 July 2024, the majority’s detailed judgment of 23 September 2024, the order/clarification of 14 September 2024, and the Clarification of 18 October 2024 (respectively ‘the majority’s short order’, ‘the majority’s judgment’, ‘the majority’s order/clarification’ and ‘the majority’s Clarification’),”
Justice Jamal Khan Mandokhel in his detailed reasons has also questioned the decision of the majority as being unconstitutional and having no legal basis. It is pertinent to point out that Justice Amin-uddin Khan and Justice Naeem Akhtar Afghan who did not agree with the majority decision had also maintained that carving out relief in these proceedings for PTI the court would have to travel beyond the jurisdiction conferred by Articles 175 and 185 of the constitution and would also have to suspend Article 51, 106 and 63 of the constitution and section 104 of Election Act 2017 along with relevant rules.
In view of the foregoing facts there is no doubt in regards to verdict of majority judges as being travesty of justice, a deliberate violation of the constitution as well as negation of commonsense. PTI was not even a party to the case. The appeal against decision of ECP and verdict of Peshawar High Court was filed by Sunni Ittehad Council. So giving relief to a party which did not approach the SC is simply mind-boggling to say the least.
The judges as custodian of the constitution are bound to give their verdicts within the parameters of the constitution and the laws enacted by parliament. I would not go into the reasons for the indiscretion by the eight judges but restrict myself only to observing that they showed their tilt towards the party to whom they provided relief, a conduct prejudicial to the oath of their office.
What the CJ has said in his note is actually a charge sheet against those eight judges for pummeling the constitution and setting aside all internationally recognized principles of jurisprudence. Anybody who acts against or violates the constitution comes under the purview of Article 6. Being judge does not mean that you have the license to deliver verdicts according to your own biases, prejudices or likes and dislikes. The judges are under greater obligation to stick to the constitution to strengthen their credentials as its custodian.
I am not a legal expert to go into the intricacies of jurisprudence but commonsense dictates that all citizens irrespective of their status and position including the judges are bound to show unqualified allegiance to the Constitution. Nobody violating this basic obligation should be allowed to go scot-free for his indiscretions. Since these judges have violated the constitution they must be held accountable for it. Now that under the 26th constitutional amendment, a constitutional bench will be formed in the Supreme Court this case may be referred to it for its final disposal and determining the constitutionality or otherwise of the verdict. In case the constitutional bench also concludes that the judges have surely violated the constitution in delivering their verdict then it would be justifiable for the government to file references against them in the Supreme Judicial Council for their dismissal from service. The country has suffered enough due to the unconstitutional verdicts of the courts pertaining to political and constitutional domains. There is a dire need to check such judges in their tracks to save the country from the debilitating implications of their judgments.
Malik Muhammad Ashraf
The writer is a freelance columnist. He can be reached at ashpak10@gmail.com.