The Supreme Court’s ruling regarding the Reserved Seats issue has reverberated throughout the nation, eliciting significant controversy. Adding to this tumult are the robust dissenting opinions from two Supreme Court justices, a rarity in our judicial history. The palpable tensions between institutions and the evident divisions within the Supreme Court have become increasingly pronounced, particularly as the Chief Justice has expressed apprehensions regarding his own court’s adjudication of the ECP Clarification case.
The principal criticism levied against the Supreme Court’s majority ruling, as articulated in the dissenting opinions of Justice Amin Ud Din and Justice Naeem Akhtar, is that the Court has effectively reinterpreted the Constitution and exceeded its jurisdiction by granting relief that was never solicited. Pakistan Tehreek-e-Insaaf, the principal beneficiary of this ruling, was not a party in the proceedings before the Election Commission, the Peshawar High Court, or even the Supreme Court itself. Furthermore, the Court addressed the entitlements of candidates who were never heard, and neither contested their affiliation with the Sunni Ittehad Council, further complicating the matter.
The extensive judgment penned by the incoming Chief Justice, Justice Mansoor Ali Shah, articulates a rather novel and somewhat unconventional rationale for the Supreme Court’s decision to extend its jurisdiction beyond the parameters of the appeal. It posits that the Supreme Court is vested with the authority to circumvent procedural obstacles in the pursuit of complete justice. By invoking Article 187 of the Constitution, the Court contended that this provision empowers it to transcend the limitations set forth by Article 185—which delineates the Appellate Jurisdiction of the Supreme Court—arguing that procedural constraints are inapplicable in the realm of justice.
The rationale articulated by the Supreme Court for surpassing its jurisdiction is fraught with inherent contradictions. The concept of achieving complete justice under Article 187 cannot be construed in total isolation from the Appellate Jurisdiction of the Supreme Court; otherwise, the entire proceeding before the Court becomes rendered superfluous. The Supreme Court has effectively transmuted the appeal into a Suo Moto action, introducing issues and inquiries that were neither questioned nor debated, and adjudicating rights that were absent from the court of first instance. Consequently, a superstructure has been erected beyond the parameters and mandate of the Constitution, all ostensibly in the name of delivering complete justice, which, in reality, constitutes the Court’s fundamental duty.
The procedural framework that the Court is mandated to follow is of paramount importance for various reasons. It engenders certainty and continuity, thereby establishing binding legal precedents for future adjudications. The pursuit of complete justice is an essential tenet of any judicial and legal system; it must not be employed as a rationale for transgressing the Constitutional mandate. Under Article 185 of the Constitution, the Court is bestowed with the authority to adjudicate appeals. An appeal is fundamentally a continuation of prior proceedings and cannot significantly deviate under the pretext of effecting complete justice—particularly in this instance, where the relief conferred by the Court was never a matter of dispute for the beneficiaries. As a creation of the Constitution, the Supreme Court of Pakistan is duty-bound to adhere to its stipulations. Any interpretation of one Article must be harmoniously aligned with the other Articles within the Constitutional framework.
While it is indisputable that Article 187 confers upon the Court the authority to issue any direction, order, or decree in the pursuit of complete justice, it must not be interpreted in a manner that undermines the appellate jurisdiction of the Court or transforms it into a construct that the legislature did not envision. Furthermore, any direction, order, or decree referenced in Article 187 must bear a direct correlation to the relief sought or be intrinsically connected to the matters under consideration before the Court. Historically, the Supreme Court has invoked Article 187 exclusively in cases adjudicated under Article 184(3) of the Constitution, and primarily in instances where no specific legal provisions adequately addressed the issue at hand. However, the reserved seats case does not exhibit any such deficiency in procedural or substantive legal provisions, as both the Election Act and relevant Constitutional stipulations unequivocally delineate the appropriate course of action for the Supreme Court in this matter.
The determination of when to comply with procedural norms and when to eschew them constitutes an inherently arbitrary exercise, thereby undermining the establishment of a binding judicial precedent for subsequent judges. This approach perilously threatens to unleash a veritable Pandora’s box for the judiciary, facilitating the evasion of procedural or constitutional constraints whenever deemed convenient. Such arbitrary decisions may ultimately be scrutinized for arising from misguided perceptions or popular sentiment. Already, our higher judiciary frequently faces allegations of engaging in self-defeating judicial activism. The core issue presented before the Court in the reserved seats case was whether a political party that neither contested the elections nor holds a single seat in Parliament is entitled to reserved seats under the Constitution. However, the Supreme Court significantly exceeded this straightforward proposition, producing a 70-page judgment that bears little relevance to this fundamental question.
Yahya Farid Khwaja
The writer is a lawyer.
