ISLAMABAD: Senior Counsel Makhdoom Ali Khan on Monday informed the Constitutional Bench (CB) of the Supreme Court that Article 187 of the Constitution the basis for the July 12, 2024 majority judgement which granted relief to the PTI in the reserved seats case does not empower the apex court to grant relief to a party that was not before it.

`Article 187 is a provision which allows the Supreme Court to decide a matter in a complete sense, but not to settle a dispute or grant relief to a party which is not before the court,` argued the counsel representing the candidates who were denied reserved seats after the Election Commission of Pakistan (ECP) quashed a notification that had allocated special seats for women to them.

`At times, in a dispute, the court can mould relief for one of the contesting parties, since there can be a situation where a party is entitled to more relief, the counseladded.

Justice Jamal Khan Mandokhail, a member of the 11-judge CB hearing a set of review petitions against the July 12 majority judgement, questioned, `If a matter relates to public importance, should the Supreme Court not exercise this provision in exceptional circumstances or remain restricted like a civil court from exercising its jurisdiction?` He further asked whether the Supreme Court could `shut its eyes` when presiding officers faile d to perform their duties according to law. He noted that, irrespective of whether someone was a party or not, people should not be disenfranchised merely because they failed to approach the court.

The counsel cited Justice Yahya Afridi now Chief Justice of Pakistan who in his note stated that while the Supreme Court has the power to interpret the Constitution, it does not have the authority to rewrite it.

Justice Afridi had cautioned that relying on Article 187 to grant relief toapartynotbefore the courtcouldcreate a dangerous and far-reaching precedent. It risked undermining due process and potentially led to judicial overreach. Therefore, such powers must be exercised only in compelling and exceptional cases to bolster the rights of an aggrieved party, while remaining within constitutional bounds, he emphasised.

The counselfurther argued that no party can directly file a petition under Article 187 of the Constitution before the Supreme Court, and reminded that the jurisdictional requirements of Articles 184, 185, 186, 186A or 188 must be satisfied for the Supreme Court to act.

He pointed out that the Supreme Court has consistently held that election disputes should be treated like civil disputes, where the bur-den of proof lies on the challenger.

Justice Musarrat Hilali observed that the Sunni Ittehad Council (SIC) likely had only one member in the National Assembly and questioned on what grounds the PTI was granted reserved seats through the July 12 judgement. She asked whether the court acted on some kind of suo motu basis.

Justice Hilali also recalled that the majority judgement had taken an independent stance to provide relief to a party PTI that was not before the Peshawar High Court, and which had only moved an application before the Supreme Court to act as an intervener for assistance.

The counsel argued that Article 187 was referenced 10 times in the majority verdict as the basis for invoking the doctrine of constitu-tional fidelity and for doing complete justice.

However, he emphasised that Article 187 is not a jurisdictional provision, but rather a procedural one that enables the court to do complete justice in matters already pending before it. Accordingly, the case must first be brought before the Supreme Court under Articles 184 to 185, 186, 186A or 188. Article 187, he said, merely allows the court to overcome procedural hurdles and technicalities in such matters.

Justice Hilali also questioned the status of the PTI, which was not permitted to contest the general elections under a common election symbol, asking whether it remained a political party despite the restrictions it faced.

Justice Aminuddin Khan, who isheading the 11-judge CB, reminded thatthe dispute overreservedseats was based on the number of seats procured.

The counsel argued that none of the 80 candidates in question had approached the Supreme Court, yet the majority judgement granted reserved seats to all 80 PTI candidates after the legal and constitutional deadline had passed even though PTI was not a petitioner before any legal forum.

He pointed out that those candidates could have joined the PTI or approached the court, but instead they chose to affiliate with the SIC.

Therefore, they were not petitioners, and allocating seats to them was clearly against constitutional provisions.

He also noted that all 13 judges of the July 12 judgement had unani-mously held that a political party which did not contest the general elections or secure any seat was not entitled toreserved seats.

The SIC,the counselargued, did notcontestthegeneralelectionsfor any seat. Its chairman ran as an independent candidate. The 80 candidates in question joined the SIC, which although a registered political party, did not contest or win any seatsin the generalelections.

The counsel also reminded that under Article 225 of the Constitution, election disputes must be raised only through an election petition yet the ECP`s notification allocating reserved seats to the petitioners was quashed.

Faisal Siddiqi, the counsel for the SIC, will begin his arguments on Tuesday.