Hafiz Ahsaan Ahmad Khokhar
The earlier majority decisions of 12th July 2024, rendered by a narrow margin of 8 to 5, were marked by a jurisprudential and constitutional overreach.
Pakistan Tehreek-e-Insaf (PTI) was neither a party to the original proceedings before the Election Commission of Pakistan nor in the litigation at any subsequent stage up to the review before the Supreme Court. At no point did PTI assert any claim to reserved seats through a constitutionally cognizable process; rather, it consistently and openly supported the SIC’s case throughout the initial Supreme Court proceedings. Nonetheless, the earlier majority judgment of the Supreme Court expanded the scope of Article 17(2) of the Constitution—guaranteeing the right to form and join political parties—and Article 187(1)—empowering the Court to do complete justice—in a manner that disregarded the express limitations embedded in Articles 51 and 106, read with Article 175(2) of the Constitution.
By permitting a political alliance lacking general seat representation to assert entitlement to reserved seats solely on the basis of independent declarations, the Court, in its earlier pronouncement, misconstrued the constitutional and statutory architecture governing electoral representation. This interpretation effectively bypassed the mandatory criteria for electoral viability and contravened the proportional representation principle, which is foundational to the allocation of reserved seats under the constitutional framework. The deviation from the clear textual scheme of the Constitution and the Elections Act, 2017, ultimately disrupted the representative equilibrium envisioned by the drafters, thereby undermining the integrity of the constitutional electoral process.
The judgment dated 12th July 2024 not only exemplified constitutional overreach but also extended the contours of judicial interpretation beyond the permissible constitutional limits. This expansion resulted in a distortion of the constitutional and statutory scheme governing the allocation of reserved seats, effectively diluting the mandatory preconditions expressly stipulated in the Constitution and the Elections Act, 2017. In contrast, the subsequent review judgment serves to realign judicial interpretation with the original intent of the framers and the unambiguous language of the Constitution and the law. It thereby restores the internal coherence, normative consistency, and structural integrity of Pakistan’s electoral framework, reaffirming the foundational principles of representative democracy and the rule of law.
While Article 187(1) of the Constitution equips the Supreme Court with broad authority to do complete justice, this power is not unbounded and cannot be exercised to circumvent or override express constitutional mandates. The Court is not vested with jurisdiction to create entitlements or carve out exceptions where the Constitution is categorical and unambiguous. Likewise, although Article 17(2) enshrines the right to form and be a member of a political party as a fundamental political freedom, it is subject to reasonable restrictions and does not override the other constitutional and statutory preconditions necessary for participation in the electoral process. The jurisprudential misstep lies in conflating general political rights with specific electoral entitlements, thereby disturbing the carefully calibrated balance of constitutional and electoral framework.
Moreover, the judgments dated 12th July September 2024 suffer from grave constitutional and procedural infirmities. The Supreme Court, in those decisions, proceeded to declare Rule 94 of the Election Rules, 2017 and the legislative amendments enacted in August 2024 as ultra vires, despite the absence of any specific challenge or prayer to that effect by any party before the Court. More critically, the Federation was notice served upon the Attorney General for Pakistan, as mandatorily required under Section 27-A of the Code of Civil Procedure, 1908. This legal omission constitutes a fatal procedural lapse that vitiates any declaration on the constitutional validity of statutory instruments. The Supreme Court has, in a consistent line of authority, held that any adjudication affecting the vires of a statute, rendered without notice to the Attorney General, is procedurally defective and devoid of legal effect.
The Supreme Court’s evolving jurisprudence in recent years – including in matters relating to Articles 62(1)(f), 63A, the Supreme Court (Practice and Procedure) Act, military trials of civilians, and NAB law amendments – has increasingly emphasized constitutional boundaries and judicial restraint. The review judgment in the reserved seats case aligns with this interpretative trajectory, signaling a mature recalibration of the Court’s institutional role.
Pakistan Tehreek-e-Insaf (PTI) and its allied platform, the Sunni Ittehad Council (SIC), committed a fundamental political and constitutional blunder that permeated every stage of the electoral process and its aftermath. Despite claiming political alignment, the SIC neither contested the elections as a registered party nor submitted the mandatory pre-election priority lists for reserved seats, and failed to secure a single general seat in any legislature. In a legally misconceived attempt to salvage parliamentary presence, PTI devised a strategy to have returned independent candidates posthumously affiliate with SIC in order to claim reserved seats. This maneuver, however, was fatally flawed and constitutionally unsustainable. It sought to reverse-engineer parliamentary legitimacy through post-election tactics, bypassing the foundational requirement of actual electoral participation and success.
This strategy not only lacked legal grounding but was uniformly rejected at all institutional levels. The Election Commission of Pakistan, various High Courts, and ultimately the Supreme Court of Pakistan did not accept SIC’s claim to reserved seats, reaffirming that electoral legitimacy cannot be manufactured post facto. PTI’s strategy thus collapsed entirely, with SIC failing to secure even a semblance of parliamentary recognition. It was a constitutional miscalculation of the highest order, rooted in a flawed understanding of representative democracy and the electoral framework. By attempting to shift the political contest to the courtroom, PTI and SIC pursued a route that was incompatible with both the letter and spirit of the constitutional scheme, leading to a complete legal and political failure.
The recent judgment of Supreme Court corrects these constitutional, procedural, and interpretative errors. It reaffirms that the allocation of reserved seats is a function of compliance with express constitutional provisions. Articles 17 and 187 cannot override the specific textual requirements of Articles 51 and 106. The Court rightly concluded that post-election affiliations, however politically convenient, cannot retrospectively confer eligibility for reserved representation. This judgment also restores the principle of institutional restraint. The judiciary’s authority under Article 175(2) is to interpret the law, not to amend it. The June 2025 decision realigns the Court’s function with its constitutional mandate and reinforces the separation of powers. It reiterates that representative entitlement must flow from electoral legitimacy and statutory compliance, not from judicial benevolence. In reaffirming constitutional supremacy, the review judgment ensures that the constitutional scheme and electoral system remains intact until it is amended by the legislatures.
Though the Supreme Court’s review jurisdiction is limited in scope and exercised with restraint, its invocation becomes not only appropriate but necessary where prior judgments risk unsettling the constitutional equilibrium or result in manifest injustice by transgressing constitutional boundaries or engaging in impermissible constitutional rewriting. In such instances, judicial correction through review is not a matter of discretion but a constitutional necessity. The reversal of the earlier decisions in the present matter is thus not merely a rectification of legal error but the restoration of constitutional fidelity. The present judgment marks a a right directions of constitutional jurisprudence, reaffirming the fundamental principle that the Supreme Court, as the guardian of the Constitution, is duty-bound to only interpret—not reconstruct—the Constitution, and to preserve the sanctity of the constitutional text and its lawful procedural architecture.
—Advocate Supreme Court of Pakistan is a constitutional expert with 25 years legal standing. He is based in Islamabad and can be reached at 0300-8487161.
