By Qamar Bashir
As usual, the people of Pakistan experienced history in the making while witnessing the
live proceedings of the Supreme Court of Pakistan today (24.06.2024), with the full
bench of the Supreme Court versus one knight, Salman Akram Raja, representing an
Independent Candidate during the hearing of an appeal filed by the Sunni Ittehad Council
(SIC) against being deprived of the reserved seats for women and minorities in the
National Assembly.
I had all sympathies for Raja Sahib, who faced pinching, exploratory, and incisive
questions bombarded at him by all members of the bench. Each judge had his own
understanding, niche, and approach to the issue and was trying to steer the discussion his
way, making things even more difficult for the counsel, who was representing Ms. Kawal
Shauzab, an active member of the PTI and an aspirant for nomination on special seats for
women in the National Assembly.
Justice Athar Minallah and Justice Mansoor Ali Shah were urging Raja Sahib to take a
holistic approach to the issue. They advised him to avoid getting embroiled in technical
and complicated matters, instead emphasizing the importance of respecting and restoring
the mandate and will of the people. They repeatedly hinted that he should highlight the
misinterpretation of the Supreme Court’s judgment by the Election Commission, which
led to PTI being denied the right to act as a party.
They also suggested that Raja Sahib request the court to take suo moto action under
Article 184 to reverse the misinterpretation of the Supreme Court's judgment by the
Election Commission. This action would restore the correct interpretation of the
judgment and bring all subsequent actions and reactions in line with it. This would
effectively mean that PTI would be restored as a party in the National Assembly,
allowing independent candidates to join it and be allocated proportional special seats for
women and minorities.
Justice Mansoor Ali Shah gave him another hint to file an appeal against the decision of
the registrar Supreme Court, who had returned the PTI’s appeal against the
misinterpretation of the supreme court’s judgment by the election commission, even now,
and let the court adjudicate the appeal and gave its decision.
Justice Mansoor was referring to a protracted legal battle which PTI fought after it was
denied the symbol BAT on January 15, 2024 by the Election Commission (ECP-123).
PTI then appealed to the Lahore High Court on February 1, 2024 (LHC-456), and the
Peshawar High Court on February 20, 2024 (PHC-789), but both appeals were dismissed.
Subsequently, PTI approached the Supreme Court of Pakistan, where the Registrar
returned their petition on technical grounds on March 5, 2024 (SCR-101). PTI did not file
an appeal against this decision, effectively ending their legal efforts to contest the
elections.
According to the judges, PTI is currently not a party to the impugned matter. Although, in
this instance, PTI cannot be heard, its point of view in the impugned case is of paramount
importance. They stated that even now, PTI can file an appeal before the Supreme Court
against the decision of the Supreme Court Registrar. This would bring the entire matter
before the Supreme Court, allowing for a proper appreciation of the issue. Consequently,
the Supreme Court would then be in a position to properly address the matter.
Justice Athar Minullah also gave Raja Sahib a hint and encouraged him to divulge the
truth which deprived PTI from the level playing field while contesting Election-2024
implying the elaborate incidents of brute state force used against PTI candidates during
the entire election process. Raja sahib did not appreciate the hint due to his over-fixation
with his line of arguments and continued to insist on technicalities.
This gap was however, filled in by a Press Talk during break in the supreme court’s
proceeding, by Kanwal Shauzab who was flanked by Senator Faisal Javaid who now
supports a beard and looked rugged but fresh. She said that State brute force was used to
snatch the nomination papers of the candidates when they approached the Returning
Officer for filing nomination papers. The nominator and seconder were harassed and
abducted.
She added that PTI candidates were even barred from entering the premises of returning
officers which prevented many of the PTI candidates from even filing the nomination
papers. The state forces were used in many other forms. The PTI candidates were
subjected to intimidation, harassment, and unlawful arrests, with many experienced
violence and assaults. PTI also reported obstruction of their campaign activities,
including denial of permits for rallies and restricted movement, constant surveillance and
intimidation tactics, media censorship, and blackouts to limit their reach.
Additionally, PTI blamed the Election Commission for manipulating the election results
in favor of their opponents, including denial of their party symbol and disqualification of
candidates, vote rigging and tampering, with ballot stuffing and manipulation of vote
counts. The Election Commision unfairly dismissed or delayed, restricting their access to
justice. But unluckily these assertions could not be made part of the court proceedings.
During the entire hearing the Chief Justice was trying the justify supreme court’s decision
which deprived the PTI from its symbol BAT and intervened several times to keep the
argument in line with his own bent of mind. But the brother judges seemed to ignore
what the chief justice was trying to achieve, and continued a barrage of questions which
visibly annoyed the Chief Justice.
During one of the such incidents, Chief Justice despite saying time and again that PTI is
not party to the impugned case painted a scenario where, all the independent candidates
had instead of joining the SIC had joined the PTI. He charged Raja Sahib and PTI of
inaction, misjudgement and of committing critical legal and constitutional lapse which
deprived them not only the party but also the political capital attached to it.
During the discussion an important concept of form and substance came under
discussion. In legal parlance, the concept of "form and substance" distinguishes between
the procedural aspects of a legal matter (form) and its core issues and merits (substance).
Form relates to technical compliance with legal procedures, such as proper filing and
adherence to deadlines. Substance focuses on the actual facts, rights, and legal principles
involved in the case, aiming for substantive justice.
Courts must balance these aspects to prevent technicalities from overshadowing the core
issues. During a Supreme Court hearing, this concept might address whether a case
should be decided based on procedural technicalities or the fundamental rights and justice
at stake, ensuring that both procedural integrity and substantive justice are achieved.
