41 independent candidates: Providing 15-day relief an error: Justice Mandokhel
ISLAMABAD: The Supreme Court judge, Justice Jamal Khan Mandokhail, stated that providing 41 candidates, who contested Elections 2024 independently, 15-day time relief with an option to join any other party by a judgment of the Supreme Court is an error of the Constitution and law.
In his note on review petitions against the reserved seats’ judgment, Justice Mandokhail said, “Relief is not only an error of the Constitution and law, but also an error of facts floating on the surface of the record.”
On June 27, 2025, a 13-member Constitutional Bench had set aside the SC impugned judgment dated 12th July, 2024, on the reserved seats of women and non-Muslims.
A Full Court of 13 judges, on July 12 and 24 delivered five separate short orders. Eight judges – Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Irfan Saadat Khan declared that 39 out of 80 MNAs on the list were elected candidates of the PTI, and to 41 independents granted 15-day time to decide on joining the PTI.
Initially, a 13-member Constitutional Bench, headed by Justice Amin-ud-Din Khan, and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi, Justice Musarat 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 the hearing of review petitions.
However, on the first hearing (May 6, 2025), 11 judges of the 13-member bench accepting the review petitions issued notices to the respondents, while Justice Ayesha A Malik and Justice Aqeel Ahmed Abbasi rejected the petitions and wrote separate notes. Justice Salahuddin Panhwar, at the fag end of the hearing of the review petitions, recused from the bench for certain reasons.
Justice Mandokhail wrote that 41 returned candidates, admittedly, while submitting their nomination papers, had declared themselves as independents. None of them disputed their status either before the ROs, the ECP, the Peshawar High Court, or before this Court.
He stated that after being elected, 41 independent returned candidates, by exercising their right provided by Clause (d) of sub-Article (6) of Article 51 of the Constitution, joined SIC. “The majority members, through the impugned judgment, while exercising their power under Article 187 of the Constitution, declared them as independents and gave them an option to join any political party within a period of fifteen days, even though the matter of 41 candidates was never pending before this Court, as well as, before any forum below the SC,” he added.
Justice Mandokhail further stated that the decision of the majority members proves the fact that those 41 candidates were actually independents.
He also wrote that by now it is well settled that a candidate who is elected with an affiliation of a particular political party or after being elected independently, joins any political party, cannot leave that particular party, nor can he join another. “If he does so, he will face the consequences of losing his seat, as provided by Article 63A (1) of the Constitution.” “We have already held that no authority, including that the court has the power to declare a candidate independent or change his status contrary to his declaration.”
He stated that no doubt the jurisdiction of this Court under Article 187 of the Constitution is to do complete justice in a matter pending before it, but such power is not unlimited; hence, cannot be expanded in any circumstance. In this provision of the Constitution, pendency of a matter is a condition precedent.
Admittedly, there was no matter pending before this Court with regard to declaring 41 candidates as independents, nor did they claim such relief. “The judgment under review to the extent of 41 candidates is, therefore, in excess of the power granted to the Supreme Court by Article 187 of the Constitution.”
Copyright Business Recorder, 2025