ISLAMABAD: Two judges of Supreme Court disagreed with the majority judgment that gave the 41 independent candidates an option that they may join Pakistan Tehreek-e-Insaf (PTI) by submitting declarations about their affiliation with the PTI and to obtain certificates of their nomination by the PTI, within a period of 15 days.
Chief Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel, on Tuesday, released the detailed reasoning. The judgment authored by Justice Jamal states; “Neither the Constitution nor the Act permits us (Judges) to issue direction or provide an opportunity or additional avenue to them to join another political party and that too, within a period of fifteen days.
“The judges decide cases in accordance with the Constitution and law, based upon the material available before them. Any such contention must be supported by the record, which is lacking in this case, therefore, these 41 candidates were independents, it added.
Justice Faez, though agreed with the short order and the judgment authored by Justice Jamal Khan Mandokhel, wrote an additional note, pointing out the constitutional violations and illegalities in the majority’s short order of 12 July 2024, and the majority’s detailed judgment of 23 September 2024, the order/ clarification of 14 September 2024 and the clarification of 18 October 2024.
The CJP hoped that eight judges will reflect and correct their mistakes and ensure that Pakistan is governed in accordance with the Constitution. He regretted unfortunately, the review petitions against the majority short order could not be heard because Justice Syed Mansoor Ali Shah and Justice Munib Akhtar outvoted me on the Committee constituted under the Supreme Court (Practice and Procedure) Act, 2023.
The chief justice observed that the majority’s short order by permitting the Election Commission of Pakistan (ECP) and PTI to, “apply to the Court by making an appropriate application, which shall be put up before the eight judges in chambers for such orders and directions as may be deemed appropriate,” deviated from how courts have always functioned, was novel and unprecedented.
The chief justice stated that by conducting hearing in chambers the majority of the judges effectively legislated, because neither the Constitution nor any law permits what they did.
CJP Faez wrote that the majority disregarded the precedents of this Court. They not only carved out a separate eight-member “court” from the thirteen-member Court, but also innovated further by not finally concluding the hearing of the appeals, because they permitted appropriate application to be filed, introduced timelines and changed what the Constitution provided.
A Full Court of 13 judges on July passed five separate short orders. One order was passed by eight-judges – Eight judges comprising Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Irfan Saadat Khan – the other by Chief Justice Qazi Faez Isa and Justice Jamal Khan Mandokhel.
Similarly, Justice Yahya Afridi, Justice Aminuddin Khan and Justice Naeem Akhtar Afghan also announced separate orders.
Justice Qazi Faez’s note also stated that the judges may decide or dispose of a case as per their understanding of the Constitution and the law but it is critical that the case must be decided or disposed of. Permitting appropriate application to be filed by the ECP or the PTI meant that the case was not decided or disposed of. This coupled with the stated timelines effectively kept the appeals pending.
He observed that in civil cases after a judgment is pronounced the decree follows. In constitutional cases too a judgment can be executed, provided it is finally and conclusively decided. The majority’s short order and the majority’s judgment did not conclude the appeals. Thus, the well-trodden legal path was abandoned by the majority which created unnecessary and avoidable problems.
Copyright Business Recorder, 2024