The Supreme Court’s (SC) recent review decision on the matter of reserved seats is as controversial as it is consequential.

The decision declared the Pakistan Tehreek-e-Insaaf (PTI) not entitled to reserved seats in the legislature and awarded the reserved seats for women and minorities previously assigned to PTI to the ruling coalition instead. In doing so, the SC handed the ruling coalition an unassailable two-thirds majority in the National Assembly and with it the power to amend the constitution.

Given the political forces at play, many observers felt the SC’s decision was predictable. However, it is important to remember that decisions motivated by political alignments still need to be justified through a process of legal reasoning. The reasoning employed in these decisions, in turn, has impacts on both jurisprudence and policy that last much longer than the political considerations that may have motivated the decision in the first place.

In this instance, while a detailed judgment has not been released, the SC’s reasoning may be inferred from the publicly broadcast review proceedings and the arguments presented by counsel representing the review petitioners, including the Election Commission of Pakistan (ECP) and the ruling coalition parties.

So what was the decision based on, and how compelling was the line of reasoning accepted by the court?

The Majority Judgement Under Review

Last year, during appellate proceedings in Sunni Ittehad Council v Election Commission of Pakistan, a thirteen-member bench of the SC awarded PTI reserved seats in proportion to the share of the ordinary seats won by PTI-affiliated candidates in the national and provincial assemblies. As PTI-affiliated candidates had more seats in the NA than any other individual party, as per the relevant statute, they also received the largest number of reserved seats in the NA.

The conclusion reached by the eight-member majority judgment was based on a fairly straightforward line of reasoning.

In addition, the majority decision recognized certain well-documented facts regarding the conduct of the ECP prior to the election with respect to the status of PTI candidates. It further held that the bat-symbol decision was misinterpreted by the ECP and wrongly used to strip PTI of its party status and declare its candidates independent. It was recognized that the actions of public functionaries caused prejudice to PTI.

What is a Review before the Supreme Court?

Before assessing the persuasiveness of the review decision, it is first necessary to understand that a review is not the same as an appeal. An appeal is a continuation of original proceedings before a different bench or forum and may be argued on broad grounds, including misapprehension of questions of law, misinterpretation of constitutional provisions, violation of fundamental rights, and miscarriage of justice. In an appeal, there is ample room for rearguing legal and constitutional issues. On the other hand, it is settled law that a review of a judgment of the SC is only warranted in cases where there is an error apparent on the face of the judgment that has a substantial impact on the final outcome of the case. Unlike an appeal, review jurisdiction does not confer a right of rehearing or repeating rejected arguments in decided cases where the court has already given a conscious and deliberate decision on points of law and fact. A judgment can only be reviewed in those rare cases where a glaring error, omission, or mistake has been made by the bench.

Another difference between a review and an........

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