• Revised cause list excludes Justices Ayesha Malik and Aqeel Abbasi, reducing bench size to 11 members
• Both judges question the legal grounds for the ECP’s review petition
• Counsel argues that the July 12 verdict granted relief to a ‘non-party’
• Constitutional Bench issues notices to respondents and seeks a reply from the ECP on PTI’s contempt petition
ISLAMABAD: In a development that left two judges visibly perplexed, the 13-member Constitutional Bench (CB) of the Supreme Court on Tuesday issued notices to respondents regarding petitions seeking to revisit the July 12, 2024, verdict, which allocated reserved seats to the PTI.
However, Justice Ayesha A. Malik and Justice Aqeel Ahmed Abbasi made it clear that they opposed the issuance of notices. They asked Justice Aminuddin Khan, the presiding judge, to officially record their dissent, as they had rejected the review petitions filed by the PML-N, PPP, and the Election Commission of Pakistan (ECP).
Both judges indicated they would provide separate reasons for their opposition at a later time.
Although the hearing was adjourned until Wednesday, a revised cause list issued later indicated that Justices Ayesha and Aqeel would no longer be part of the bench. As a result, the size of the Constitutional Bench was reduced from 13 to 11 members: Justices Aminuddin Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan, Shahid Bilal Hassan, Muhammad Hashim Khan Kakar, Salahuddin Panhwar, Aamer Farooq, and Ali Baqar Najafi.
A senior counsel, speaking on condition of anonymity, explained, “Since they have dismissed the reviews, there’s no reason for them to remain on the bench. They’ve issued a final ruling, so they shouldn’t sit on the bench now.”
The bench also issued notices to Attorney General Mansoor Usman Awan under Section 27A of the CPC and instructed the ECP to submit a response by Wednesday regarding a contempt of court petition filed by PTI leader Kanwal Shauzab for failing to implement the July 12 ruling. Interestingly, the contempt case has been delisted and will not be heard on Wednesday.
Amid heated arguments, Justice Aminuddin began dictating the order, much to the surprise of the two dissenting judges.
In its July 12 order, the Supreme Court, by an 8-5 majority, had ruled that the 41 candidates who were returned as MNAs from a total of 80 were to be considered members of the PTI’s Parliamentary Party in the National Assembly for all constitutional and legal purposes.
When senior counsel Sikandar Basheer Mohmand represented the ECP, Justice Ayesha questioned how the commission could be aggrieved by the July 12 ruling and whether the review petition was valid without implementing the court’s earlier decision. Justice Aqeel also raised concerns about the ECP’s involvement in the matter.
The counsel explained that the case before the Supreme Court had not been initiated as a public interest matter but rather as an appeal against the Peshawar High Court’s order, which led to the ECP being included as a necessary party in the case. The ECP, the counsel clarified, had not approached the court independently.
However, Justice Ayesha queried how the ECP could appear before the court without first complying with the Supreme Court’s majority decision, particularly since the court had already interpreted the ECP’s stance regarding PTI in its judgment.
Justice Hashim Kakar also questioned why the judgment, regardless of whether it was right or wrong, had not been implemented and wondered what assurance there was that the present bench’s decision would be executed.
The counsel attempted to argue that the judgment had been partially implemented and that the ECP had provided additional grounds with its review petition.
Justice Ayesha, however, asked how the commission could decide which parts of the judgment to implement and which to disregard.
The counsel responded that the July 12 verdict had granted relief to a party that was not even before the court.
At this point, Justice Jamal Khan Mandokhail raised concerns about whether the court was functioning as an appellate body. While expressing respect for the ECP as a constitutional institution, Justice Mandokhail lamented the direction in which the commission seemed to be taking the court.
