Dissenting note of two judges: ‘Compliance with detailed judgement in SIC case is a constitutional fidelity’

ISLAMABAD: Two judges of the Constitutional Bench of the Supreme Court stated compliance with the detailed judgement of the majority judges in Sunni Ittehad Council (SIC) case is not a matter of discretion but of constitutional fidelity.

“To disregard such a decision would not only undermine the authority of this Court but also erode the foundational values of democracy itself,” wrote Justice Ayesha A Malik and Justice Aqeel Abbasi in their dissenting note, issued on Friday.

They dismissed the review petitions of Pakistan Muslim League-Nawaz (PML-N), Pakistan Peoples’ Party (PPP) and the Election Commission of Pakistan (ECP), and noted that the ECP has acted contemptuously; therefore, has no right to challenge the short order or detailed judgement.

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A 13-member SC Constitutional Bench headed by Justice Aminuddin Khan, and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, Justice Aqeel Ahmed Abbasi, Justice Shahid Bilal Hasan, Justice Muhammad Hashim Khan Kakar, Justice Salahuddin Panhwar, Justice Aamer Farooq and Justice Ali Baqar Najafi was constituted for hearing of review petitions.

However, after hearing preliminary arguments on May 6, the 11 judges accepting the review petitions, issued notices to the respondents, but Justice Ayesha and Justice Aqeel rejected the petitions and decided to write their own separate order.

In a six-page order, authored by Justice Ayesha, both the judges observed that the petitioners have attempted to reargue the case in order to obtain a different opinion from the one given. A review-able ground would essentially be one where the decision was per incuriam or where the error is so evident that it is floating on the surface of the record having a substantial impact on the final outcome of the lis.

The order stated that this Court has emphasised time and again that every judgment announced by the Supreme Court is considered to be solemn, final and a conscious deliberated decision where the power of review cannot be invoked as a routine matter and should be exercised in exceptional circumstances to avoid gross injustice. That review is not synonymous with an appeal and merely because the conclusion drawn is wrong in the eyes of the party, it does not constitute a review-able ground.

The judges noted that the PML-N and the PPPP have not attributed any error to the detailed judgment as they have only challenged the short order dated 09.07.2024 in the review petitions. They filed petitions on 15.07.2024, while the detailed judgement was released on 23.09.2024, and despite a lapse of more than seven months, they have not challenged the detailed judgment. “As such, no objection has been raised to the underlying rationale or findings of the Court in the Detailed Judgement. As a result, they have failed to point out any review-able ground,” order noted.

It said that the independence of the ECP is fundamental to the election process which is the very foundation of democracy and that the ECP should not become subservient to political influences rather must remain an impartial custodian of democracy.

They objected to the exclusion of author and five other judges who originally heard the SIC appeal against the Peshawar High Court verdict. The order said that the author and five are available yet have not been included in this bench. This exclusion is based out of Article 191A of the Constitution inserted by way of Twenty-Sixth Amendment which requires the formation of constitutional benches comprising of judges nominated and determined by the Judicial Commission of Pakistan (JCP).

“In our opinion, the current composition of the Bench reflects the will of the majority of the JCP which comprises of members from the Government PML-N and the PPPP who have filed the review petitions.”

“This raises serious concerns about fairness, impartiality and transparency as propriety demands that the five members who constitute part of the Judges who rendered the opinion of the majority be included in this bench.”

Copyright Business Recorder, 2025