ISLAMABAD: Justice Syed Mansoor Ali Shah has observed that there cannot be complete justice without looking at the whole elections, where electorates have voted for a large number of independents due to their affiliation with Pakistan Tehreek-e-Insaf (PTI).
A Full Court, headed by Chief Justice Qazi Faez Isa, on Tuesday, was hearing an appeal of the Sunni Ittehad Council (SIC) for not allocating women and minorities reserved seats to it in the National Assembly and the provincial assemblies. Justice Mansoor said; “If we open the complete justice lens then we can’t close our eyes to how we reach the issue of SIC because the Election Commission of Pakistan (ECP) declared the PTI candidates as independents.”
He said that all 84 candidates got votes as they held out to the public that they were members of the PTI. “Do we see other things and ignore this aspect that the people have voted for the PTI”, he asked the attorney general, who argued that the bench hearing the SIC’s appeal under Article 185 of the Constitution cannot invoke the jurisdiction of Article 187 i.e. to do “complete justice”.
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Justice Mansoor questioned how we do complete justice; do we close our eyes? What do we do to do complete justice, and don’t see the whole picture? He said complete justice is to broaden the vision and see the whole transaction. AGP Mansoor Usman Awan replied; “but with limitation”.
Justice Athar Minallah asked the attorney general why was he telling the Supreme Court that though it is vested with extraordinary jurisdiction, but restrict itself only to Article 185 jurisdiction in this case.
He said one thing is obvious that one party was excluded by the ECP on the basis of misinterpretation of the Supreme Court’s judgment, adding, indirectly this apex court would be validating the grave constitutional violation and thus, invoking the “Doctrine of Necessity” again.
He said this is not ordinary Article 185 litigation, because it relates to the rights of the people, particularly to those who have been disenfranchised by unconstitutional misinterpretation of the Supreme Court’s judgment by a constitutional body.
“We are ignoring the elephant in the room,” he added. Justice Mansoor said; “This is not a case where the patwari has taken someone’s land that we have to see the case in view of Article 185.”
He stated; “This matter pertains to the general elections; it is sui generis, it is a different sort of proceeding under Article 185, and we are looking at the electorate, national elections, and millions of people who voted for a party, therefore, they have to look at the case as a whole.”
“But you want usto only see one segment of the elections and ignore the illegality that occurred just minutes before.” He said that according to the record provided by the ECP, three persons contested elections on PTI tickets and won, so they became members of PTI. “There is a party on the table then independents have the choice to take their vote. Everything falls in place. I don’t know then what justice is?”
The chief justice then remarked; “That we all want justice; this is an illusive concept if we go on personal justice then my justice will be different from your (AGP’s) justice principle, someone may be in favour of capital punishment and someone will be against it.” “When we apply the justice principle then we apply the law and constitutional provisions.”
“Read all the judgments of this Court (the SC) which introduced the “Doctrine of Necessity” and all of them rely on the justice principle – Kelsen’s theory of law.” He noted that every judgment has been based on the premise of law if they have simply followed the constitution and said that this is not permissible, you cannot take over, you cannot send the elected representatives home, that would be the letter of the constitution, I am not saying the spirit of the constitution.“
The chief justice said when the judges say forget what the Constitution say there is one word “justice” I am going to elect, erect and edifice of, on the basis of this one word then we might as well do away with the constitution because now we are imposing our vision on the nation. We are imposing our will on the Parliament. When we approach this vague concept then we go into all sorts of troubles, which are [part of our] history.“ “Let Pakistan go on the constitutional path,” the CJP added.
Justice Mansoor noted that the issue of independent members never came before the court previously because the number of independents was less, but this time the number of independent[candidates] is very high, so they cannot ignore it.
Earlier, the attorney general argued that the Supreme Court is hearing the case under Article 185 (3) of the Constitution, where the SIC and its chairman are aggrieved of the Peshawar High Court (PHC)‘s judgment, which upheld the Election Commission’s decision. The reserved seats were not allotted to the SIC, claimed by it.
The AGP said in this lis why the apex court cannot invoke Article 187 and pass an appropriate order. He said Article 187 is the power which has been conferred upon the Supreme Court and it is not the jurisdiction.
Copyright Business Recorder, 2024
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