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Doctrine of necessity’ echoes in Courtroom , again ... Reserved Seats Hearings

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Doctrine of necessity’ echoes in Courtroom No 1, again

Nasir Iqbal
July 3, 2024

• Justice Isa regrets how some judges are ‘imposing their will’ on parliament
• Justice Mansoor says court cannot limit itself to one matter, stresses import of ‘complete justice’
• Justice Minallah terms PTI’s exclusion from polls ‘a grave violation’


ISLAMABAD: As the issue of reserved seats meant for the Sunni Ittehad Council continued to polarise the full court, Chief Justice Qazi Faez Isa on Tuesday equated the ‘doctrine of necessity’ with the ‘justice principle’, saying successive military takeovers had been legalised in the past using the same principle, as embodied in the maxim ‘Salus Populi Supreme Lex Esto’ (the welfare of people should be the supreme law).

The CJP made these comments during full court proceedings on petitions moved by the SIC against the Election Commission of Pakistan (ECP) decision to deny it the reserved seats for women and non-Muslim lawmakers.

According to CJP Isa, all these previous judgements were based on the premise that they have followed the Constitution, even though the Constitution does not envision military takeovers or sending elected representatives home.

“When you cannot find a tangible reason to hang on to the Constitution, you open the doors for the doctrine of necessity,” he said, and implored that Pakistan should be allowed to get on the constitutional path for once.

The observation came when Justice Athar Minallah suggested that what Attorney General for Pakistan (AGP) Mansoor Usman Awan was arguing, in fact, meant asking the apex court to only look at Article 185 of the Constitution (appeal), which was before the court.

Justice Minallah further said it was obvious that a political party was excluded on the basis of misinterpretation of constitutional provisions and the Jan 13 judgement of the apex court, adding that this would indirectly mean that this apex court would be validating a grave constitutional violation and invoking the ‘doctrine of necessity’ instead of Article 185.

He said the AGP expected the court to validate this exercise, even though it was related to the rights of people who were disenfranchised by an unconstitutional interpretation by a constitutional body, i.e. the ECP.

At this, the CJP regretted: “When judges, some of them may have great wisdom, forget what the Constitution says but erect the basis of their judgement on one word, ‘justice principle’, then we may have to do away with the Constitution because we may now be imposing our vision on the nation by saying constitution-makers are not right in framing the Constitution, but judges are.”

He said that judges were imposing their will on parliament, adding that he did not want to impute any intention, but these judges genuinely believed in it.

We all want justice, but it is an elusive concept since it may differ, the CJP observed. Pointing towards the AGP, he said that you may apply the justice principle, but the courts apply only law and constitutional provisions. “When you go into these vague concepts, then you go into all sorts of trouble, which are [part of] history and not an academic exercise anymore,” Justice Isa said.

‘Complete justice’

Justice Syed Mansoor Ali Shah, however, said that when we open the lens of ‘complete justice’, the court cannot turn a blind eye. He recalled that had the ECP declared the PTI a political party, the independents may have a choice of joining it, adding that the independents won the elections because they held out to their electorates that they were PTI candidates.

But when we say that the court will not consider these facts but examine only the limited issue while ignoring the complete picture, then what is the purpose of ‘complete justice’, Justice Shah asked.

“What I find difficult is to ignore one segment of electorates while overseeing a very grave illegality, therefore the court should not attend to it and close its eyes,” he added.

Justice Minallah observed that the AGP had not addressed the basic question in the context of Article 51(d) of the Constitution, which was the rights of a political party. He said the exclusion of the PTI from the elections was a grave constitutional violation.

Is it not our obligation as the highest constitutional court to correct this serious violation since it goes to the root of democratic principle as it has virtually disenfranchised all those who voted for a particular political party, observed Justice Minallah.

Justice Munib Akhtar questioned whether the independent candidates were elected as independents by the people or created by the ECP due to its faulty understanding of the Constitution, in particular the Jan 13 judgement of the Supreme Court.

Justice Akhtar said the basis of the Constitution framework was that in all the houses, no seats should be left vacant, but here a large number of independents has resulted in the vacancy of the reserved seats and accordingly the excess seats must go to the political parties. The CJP, however, wondered if there was anyone’s case before the bench that the seats should remain vacant.

Referring to the question of why the Supreme Court cannot invoke Article 187 of the Constitution to do complete justice, the AGP argued that this provision envisages a power to the apex court but not a jurisdiction and can be exercised only when a competent case was filed before it and was pending before Article 184(3), 185(3) or 188 of the Constitution.

No independent proceedings can be initiated under Article 187 of the Constitution, he said, adding when a case was pending, the court had to look at what had been brought before it.

The AGP also took the apex court towards the 2018 general elections — being the first elections after the introduction of the Elections Act 2017.

He said that even during the 2018 elections the formula worked for the allocation of reserved seats envisaged no seats for independent candidates.

The AGP emphasised that the assembly which passed the elections act was perfectly inclined to exclude the independent candidates for the purposes of allotting reserved seats and every successive assembly followed the same rules.

Therefore, the court should bear the legislative intent while introducing Article 51(6) of the Constitution.

Published in Dawn, July 3rd, 2024
 
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