• PBC vice chairman Naek terms ruling novel as it is based on ‘popular will’
• Akram Sheikh says court was not dealing with ordinary civil case
ISLAMABAD: The detailed judgement in the reserved seats case has reignited a debate about the powers of the Supreme Court to do ‘complete justice’ by invoking Article 187: which is usually used in cases being heard under Article 184 or the suo motu jurisdiction.
According to the Pakistan Bar Council vice chairman, the exercise of appellate jurisdiction with the ‘suo moto’ powers was a ‘novel precedent based on popular will of the people’.
However, the eight judges in the majority judgement authored by Justice Mansoor Ali Shah spelt out the reason why the constitutional provision for complete justice under Article 187 was invoked. The provision is normally applied in the suo moto jurisdiction.
The judgement said that “in exercising its appellate jurisdiction under Article 185 of the Constitution, this court cannot go beyond the pleadings. We are afraid, this contention is misconceived. It results from a misunderstanding of treating election disputes as mere civil disputes between two private parties, similar to other civil disputes.”
Pakistan Bar Council Vice Chairman Farooq H. Naek said that the Supreme Court usually exercises powers vested in Article 187 in suo motu cases to provide ‘complete justice’.
However, the Supreme Court “in its wisdom has rewritten the Constitution by overriding Article 4 that provides the right of individuals to be dealt with in accordance with the law”, the PBC vice chairman said. The independent candidates voluntarily joined the Sunni Ittehad Council (SIC) under Article 63, but the apex court changed their party without hearing them by invoking Article 187, he added.
“This is a judgement passed under Article 187 to provide complete justice, but unfortunately this judgement has not been passed in accordance with the doctrine of complete justice,” he claimed.
The veteran lawyer said the courts were “always legally bound to do justice within the parameters of the law and Constitution and not on the basis of the perception and popular will of the people”.
The judgement, however, said the court could invoke Article 187(1) to do complete justice in any case when there is no “specific provision of law that covers or addresses the matter or issue involved”.
Legal expert Raja Inam Ameen Minhas opined that the judgement also discussed matters that were not part of the SIC appeal.
He said if the bench intended to go beyond the jurisdiction, it should have put the parties concerned on notice. According to him, this judgement has set a new precedent as it extended relief to a political party whose application for impleadment was pending before the apex court.
“The procedural formality of first accepting PTI’s application and then granting it the relief does not carry much weight where the court’s concern is the protection of the right of vote of the people (the electorate) guaranteed under Articles 17(2) and 19 of the Constitution, more than the right of any political party—whether it be SIC or PTI or any other party,” the judgement said.
According to former deputy attorney general Raja Khalid Mehmood Khan, this was a populist decision as the apex court could have dismissed, accepted, or partially allowed an appeal under Article 185 of the Constitution.
Advocate Mohammad Akram Sheikh, on the other hand, said that “while exercising Article 185, the Supreme Court is not denuded from its powers vested in Article 184 or 187”.
He agreed with the court observations that the reserved seats case was not a “routine civil suit but the court was dealing with the matter of public importance”.
Published in Dawn, September 24th, 2024
