Chief Justice Isa Criticizes Doctrine of Necessity in Reserved Seats Case

ISLAMABAD: The issue of reserved seats for the Sunni Ittehad Council (SIC) has caused significant division within the Supreme Court, with Chief Justice Qazi Faez Isa equating the ‘doctrine of necessity’ to a ‘justice principle.’ He highlighted that successive military takeovers in Pakistan have been legalized under this principle, citing the maxim ‘Salus Populi Supreme Lex Esto’ (the welfare of the people should be the supreme law).

During full court proceedings on petitions filed by the SIC against the Election Commission of Pakistan’s (ECP) decision to deny them reserved seats for women and non-Muslim lawmakers, Chief Justice Isa remarked that past judgments have claimed adherence to the Constitution despite it not envisioning military takeovers or dismissing elected representatives.

“When you cannot find a tangible reason to hang on to the Constitution, you open the doors for the doctrine of necessity,” the Chief Justice asserted, urging that Pakistan should finally follow a constitutional path.

This statement was made in response to Justice Athar Minallah’s suggestion that Attorney General for Pakistan (AGP) Mansoor Usman Awan was essentially asking the court to focus solely on Article 185 of the Constitution (appeal), which was currently under review. Justice Minallah emphasized that excluding a political party based on a misinterpretation of constitutional provisions would indirectly validate a significant constitutional violation and invoke the ‘doctrine of necessity’ instead of adhering to Article 185.

The AGP argued that the court should validate the ECP’s decision, even though it disenfranchised people through an unconstitutional interpretation. The Chief Justice criticized judges for sometimes imposing their will over the Constitution, saying, “We all want justice, but it is an elusive concept since it may differ.”

Justice Syed Mansoor Ali Shah, however, defended the notion of ‘complete justice,’ stating that the court could not ignore significant facts, such as the ECP’s decision to not recognize PTI as a political party, which led independent candidates to run in elections claiming PTI affiliation. Justice Shah argued that the court should not overlook such grave legal oversights.

Justice Minallah pointed out that the AGP had not addressed the crucial issue of political party rights under Article 51(d) of the Constitution, noting that the exclusion of PTI from the elections constituted a severe constitutional violation. Justice Munib Akhtar further questioned whether independent candidates were genuinely elected as independents or were a result of the ECP’s misinterpretation of the Constitution, particularly the Supreme Court’s January 13 judgment.

The Chief Justice wondered if any case before the bench argued for leaving the reserved seats vacant. In response, the AGP contended that Article 187 of the Constitution, which allows the Supreme Court to ensure ‘complete justice,’ grants power but not jurisdiction and can only be invoked when a relevant case is pending under specific constitutional articles.

Referring to the 2018 general elections as the first under the Elections Act 2017, the AGP noted that the formula for allocating reserved seats excluded independents. He emphasized that the legislative intent behind Article 51(6) was to exclude independent candidates from receiving reserved seats. The ongoing debate underscores the complexities and constitutional challenges in addressing electoral and political party rights in Pakistan.