Chief Justice Qazi Faiz Isa has written a letter to the registrar seeking a response regarding the clarification order of eight judges on the decision of specific seats.
The Election Commission had filed a revision on August 7 against the decision of the full bench on certain seats, but the eight-judge Supreme Court issued a clarification on September 14 without the petition being decided.
The Chief Justice has asked nine questions in a letter to the registrar Supreme Court on ‘explanation of judges without a review petition being set’.
QUESTIONS FROM THE REGISTRAR OF THE CHIEF JUSTICE
* When did the Election Commission and Pakistan Tehreek-e-Insaaf file the clarification request?
* Why the requests of Tehreek-e-Insaf and Election Commission were not sent to the Practice Procedure Committee?
* How are the miscellaneous petitions fixed for hearing without a cause list?
* Did the Registrar’s Office issue a notice to the concerned parties and the Attorney General? In which courtroom or chamber were the applications heard?
* Why the cause list has not been issued for deciding the applications?
* Why was the order not fixed in the courtroom to be pronounced?
* How was the order uploaded on the website without the original file and order being deposited in the Supreme Court Registrar?
* Who gave the order to upload the order on Supreme Court websites?
Speaking to Independent Urdu, former High Court judge Shah Khawar said that ‘this matter has become very complicated and it is very important to find a constitutional solution.’
He said that ‘in the past there is no such instance in the Supreme Court that the Chief Justice is not aware of it and the explanations are uploaded on the websites and it did not happen that the judge issued his opinion without the case being fixed for hearing.
“At least if there is a hearing in the chamber, the decision can still be issued, but the party must be noticed and heard.”
Has this happened in the past?
In response to this question, Shah Khawar said that ‘Such a precedent was established by the judges of the Islamabad High Court, in which the signature of the Chief Justice was not present and two judges issued their decision, which was later followed by Chief Justice Islam. Abad High Court had removed it from the website.
Journalist Awais Yousafzai, who covers the news of the High Court, said that in the Terian White case, there was a three-member special larger bench headed by Chief Justice Amir Farooq, in which the other two judges were Justice Mohsin Akhtar Kayani and Justice Arbab Tahir.
Justice Mohsin Akhtar Kayani and Justice Arbab asked to dismiss the petition as inadmissible and the judgment was uploaded on the website without the signature of the head of the bench.
Later, the Chief Justice of that time said that the decision which was published on the website without the signature of the head of the bench is not a decision but the opinion of two judges because even in case of disagreement, the signature of all the members of the bench must be signed. are.’
Owais Yousafzai added that ‘Chief Justice had constituted a new bench when the matter was controversial, but despite the decision was released on the website, then the matter was also investigated as to how it was uploaded on the website.’
What is the solution?
In response to this question, former judge Shah Khawar said that the only way to get out of this complication is for the President of Pakistan to write a letter to the Supreme Court under Article 186 and seek advice on the situation, on which the Supreme Court of these eight judges Without forming a bench and removing the ambiguity.’
He said that ‘eight judges cannot be kept in this bench because by issuing clarifications they have become parties to the matter, which has created confusion.’
PTI’s appeal to the Supreme Court
In the petition filed by Chairman PTI, Barrister Gohar, the Speaker of the National Assembly has requested clarification on the letter to the Election Commission and asked the court to clarify that the amendment to the Election Act does not apply to the order of 12 July.
It has been stated in the petition that the letters of Speaker National Assembly, Speaker of Punjab Assembly to the Election Commission do not clarify the correct legal position, the letters of the Speakers of both the Assemblies have no effect on the short decision of 12th July, the letters of the Speakers of both the Assemblies Election should be ignored by the Commission and in the light of the explanatory order dated September 14, the Election Commission is bound to implement the summary judgment of July 12.
What clarification was issued by the eight judges?
The eight judges who delivered the majority judgment in the reserved seats case had issued their explanation on September 14, which was also uploaded on the Supreme Court’s website.
The clarification said that there is no ambiguity in the July 12 verdict, the Supreme Court’s short order of July 12 is very clear and the Election Commission has made the order unnecessarily complicated.
The explanatory statement ordered that non-implementation of the decision would have dire consequences.
According to the explanatory statement, Barrister Gohar has been recognized as Chairman PTI and Umar Ayub as Secretary General, so the seat won will be considered as the seat won by this political party immediately, any subsequent action will be done on the respective dates of that time. cannot change the agreement and as per the stipulated status these successful candidates were PTI candidates.
Supreme Court decision on reserved seats
Of the 13 judges of the Supreme Court, eight supported the decision while five dissented.
Last month, on July 12, the Supreme Court annulled the decision of the Peshawar High Court and the Election Commission regarding specific seats and said in the decision that ‘Pakistan Tehreek-e-Insaaf is entitled to specific seats.’
The Supreme Court had further said in a short decision that ‘the right of a political party to participate in the election does not end due to the loss of the electoral symbol. PTI should submit the list regarding specific seats within 15 days.
What was said in the detailed dissenting note of the judges?
Two judges of the Supreme Court, Justice Aminuddin Khan and Justice Naeem Afghan, while issuing a minority decision, said that it is a proven fact that the Sunni Ittehad Council did not participate in the general elections as a political party, even the chairman of the Sunni Ittehad Council. contested in an independent capacity, whereas PTI was not a party to the present case and to grant relief to it would have to go beyond the jurisdiction conferred in Articles 175 and 185. To give relief to PTI, Article 51, Article 63 and Article 106 of the Constitution will have to be suspended.
In the dissenting note, it was further written that ‘the objection was not raised in any court proceedings that the members did not join the Sunni Ittehad Council, the Tehreek-e-Insaf was not a party in the Election Commission or the High Court, even until the decision was issued in the Supreme Court. PTI was not a party.’
In the dissenting note of Chief Justice Qazi Faiz Isa and Justice Jamal Mandukhel, it was said that ‘PTI or any of its leaders have not challenged the Election Commission’s decision to declare them as independent members, however, in view of this fact, the petitions for election proceedings. Therefore, the court can look into the matter of declaring PTI candidates independent by the Commission, those candidates who have not submitted any other declaration till the date of withdrawal of nomination papers are part of the PTI parliamentary party. Election Commission should include PTI with other political parties and distribute specific seats.
It added that ‘candidates who had the last date for submission of nomination papers up to December 24, 2023 and have not declared themselves independent or affiliated with any other party will be considered independent.’
Appeal of Election Commission and Muslim League-N decision
The Election Commission approached the Supreme Court on July 25 on the issue of 41 independent members and submitted a request for clarification on the decision to the Registrar Supreme Court.
This section contains related reference points (Related Nodes field).
In this petition, it was said that 41 independent members have submitted the documents of party affiliation, the members who submitted the documents wrote that the affiliation will be confirmed by Tehreek-e-Insaf, there is no party structure of Tehreek-e-Insaf in the Election Commission records, Tehreek-e-Insaf is basic. In the absence of a structure, who will confirm the party affiliation of the independent members, Barrister Gohar Ali Khan is not the party chairman in the Election Commission records, the Supreme Court should guide on this matter.
While the Muslim League-N had also requested to issue an injunction on the Supreme Court’s decision of July 12 in the revision petition against the Supreme Court’s decision to give certain seats to the Tehreek-e-Insaaf.
In the petition of Muslim League-N, it has been said that the Supreme Court has recognized PTI as a political party in the decision regarding specific seats, while no such request was made in the petition of the Sunni Ittehad Council. Pakistan, the petition before the Peshawar High Court and later the Supreme Court of Pakistan raised only the question whether the Sunni Ittehad Council was entitled to certain seats or not.
‘Sunni Ittihad Council and PTI are two separate political parties, while the Supreme Court’s order shows that the Supreme Court has considered both parties as one. There is silence on important points.’
Matter of reserved seats
There are currently 13 parties in the National Assembly, eight of which are part of the ruling coalition. The ruling coalition parties have a total of 208 seats, short of the two-thirds majority of 224. A two-thirds majority is required for constitutional amendment.
After the decision of the Election Commission, the reserved seats were distributed among all the other parties, then the ruling coalition got a two-thirds majority, but after the suspension of the Supreme Court’s decision, the number has again increased to 208, due to which the government will remain in power but with two-thirds. Without a majority.
The total number of reserved seats in the National and Provincial Assemblies of the Sunni Alliance is 78, of which 23 belong to the National Assembly and the rest belong to the Provincial Assemblies.
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2024-09-23 12:33:18