• Dissenters observe relief to PTI ‘self-created’
• Say majority verdict creates a new parliamentary party in all houses

ISLAMABAD: Justice Aminuddin Khan and Justice Naeem Akhtar Afghan, in their dissenting verdict in the reserved seats case, have regretted that the “superstructure” created by the July 12 majority judgement does not in any way come within the ambit of the jurisdiction vested in the Supreme Court or the Constitution.

“The issue was simply the matter of post-general elections directly related to the reserved seats for both women and non-Muslims on the basis of proportional representation system of political parties’ lists of candidates under Article 51 and 106 of the Constitution,” the dissenting note explained. “In the process of general elections all events are scheduled and time-bound and cannot be reversed,” said the 29-page order.

Both judges were part of the 13-member bench which in a July 12 majority judgement held that the Pakistan Tehreek-i-Insaf (PTI) was eligible for the reserved seats in the national and the provincial assemblies.

The dissenting judgement observed that the majority’s short order in effect had created a new parliamentary party in the National Assembly as well as the three provincial assemblies, which clearly and unequivocally was not an issue before the apex court.

Unless Article 51 (National Assembly), Article 106 (provincial assemblies) and Article 63 (disqualification) of the Constitution are suspended and new articles in consonance with the relief granted through the majority order are inserted in the Constitution, the relief given to PTI cannot be granted, the minority judgement explained. The note said that the detailed majority judgement has yet to come despite the expiry of 15 days mentioned in the decision, adding that this delay may render the review petitions filed against the July 12 short order infructuous.

For creating and carving out relief in these proceedings for the PTI, the minority judgement explained the court has to travel beyond the jurisdiction conferred by Articles 175 and 185 of the Constitution and would also have to suspend Article 51, 106 and 63 of the Constitution and Section 104 of the Elections Act 2017 along with other rules.

According to the minority judgement, the PTI was not before the Supreme Court, the Peshawar High Court or even the Election Commission of Pakistan. The decision by 80 independent candidates joining the Sunni Ittehad Council (SIC) was never disputed by anyone. Moreover, the 39 plus 41 candidates, as mentioned in the majority’s short order, did not come before the apex court nor were they heard.

The majority short order decided about their rights or ‘luck’ without their consent or even hearing them and their joining of SIC has been undone without such prayer of anyone before this court or before the high court, it added.

The minority judgement said that the appeals filed by the SIC had been dismissed by the majority order, as no relief was granted to the SIC. It said Article 175 (jurisdiction of the courts) was also ignored by the majority judgement in addition to the constitutional limits of jurisdiction under Article 185 (appeal).

All substantive as well as procedural law with regard to parties were also ignored, besides the relief granted to PTI was self-created, carved out by the majority judgement as none has claimed this relief in these proceedings, the dissenting order regretted.

Not only the SIC has been denied relief claimed by it but also all those who joined it have been taken off for the rest of the tenure of the national as well as provincial assemblies, the minority judgement said. Besides, it added, the SIC was kicked out from the assemblies.

For a specific date i.e. May 6, 2024, the notification of returned candidates for special seats was quashed. However, before that date, their notification and acts were held to be valid. It is incomprehensible how can this be done, as it is without any backing of the Constitution, the minority judgement regretted. Moreover, it said, the majority judgement virtually declared these 80 candidates as not honest under Arti­cle 62(1)(f) of the Constitution and all the returned candidates for the reserved seats of other parties, who have been notified, were not issued notices and provided an opportunity for hearing.

Published in Dawn, August 4th, 2024