ISLAMABAD: Justice Jamal Khan Mandokhail has ruled that the majority judgment in the reserved seats case to the extent of declaring 41 MNAs as independents is in excess of the power granted to the Supreme Court by Article 187 of the Constitution.
Justice Mandokhail issued a 12-page detailed reasons in the review petitions in the reserved seats case. The Supreme Court by a majority of 7 members, including Justice Amin-ud-Din Khan, Justice Musarrat Hilali, Justice Naeem Akhter Afghan, Justice Shahid Bilal Hassan, Justice Muhammad Hashim Khan Kakar, Justice Aamer Farooq and Justice Ali Baqar Najafi, had allowed all civil review petitions and had set aside the majority judgment dated 12.07.2024
The court had dismissed the appeal filed by the SIC and had restored the judgment rendered by the Peshawar High Court, Peshawar. Similarly, the court had ruled that Justice Mandokhail will issue his detailed reasons later on but had partly allowed the review petitions and maintained his original order with regard to 39 seats but reviewed the majority judgment to the extent of 41 seats.
In his detailed reasons, Justice Mandokhail partially disagreed with the majority ruling concerning the reserved seats that had restored 41 seats in favour of the Sunni Ittehad Council (SIC). “No doubt the jurisdiction of this Court under Article 187 of the Constitution is to do complete justice in a matter pending before it, but such power is not unlimited, hence, cannot be expanded in any circumstance,” Justice Mandokhail held, adding that in this provision of the Constitution, pendency of a matter is a condition precedent.
Admittedly, Justice Mandokhail held that there was no matter pending before this Court with regard to declaring 41 candidates as independents nor did they claim such relief. He noted that the majority members through the judgement, while exercising their power under Article 187 of the Constitution, declared them as independents and gave them an option to join any political party within a period of 15 days, despite the fact that the matter of 41 candidates was never pending before this Court as well as before any of the fora below. The judge held that the decision of the majority members proves the fact that those 41 candidates were actually independents, adding that by now, it is well settled that a candidate who is elected with an affiliation of a particular political party or after being elected independently, joins any political party, cannot leave that particular party nor can join another. “If he does so, he will face the consequences of losing his seat, as provided by Article 63A(1) of the Constitution,” Justice Mandokhail noted, adding that they have already held that no authority including the Court has the power to declare a candidate independent or change his status contrary to his declaration.
He noted that while declaring 41 members of the NA as independents, the majority members did not mention the relevant provision of the Constitution and the law. Instead, they overlooked Article 51(6)(d) and consequences of Article 63A(1) of the Constitution.
Justice Mandokhail held that the presumption of majority members that those 41 candidates belonged to the PTI, has not been supported by any evidence or material available before them. The judge further held that the judgement, to the extent of 41 candidates, is, therefore, in excess of the power granted to the Supreme Court by Article 187 of the Constitution. “Thus, in view of the above, I am convinced that the judgment under review to the extent of declaring 41 candidates as independents, with further relief of providing them 15 days’ time with an option to join any other party, is an error of the Constitution and law, as well as an error of facts floating on the surface of the record,” the judge concluded, adding that to such extent, the judgment under review cannot sustain.