In their 29-page dissenting note, Justice Khan, Justice Afghan say PTI was not a party in reserved seats case.  Both jurists also raised questions over a delay in releasing of Supreme Court’s detailed verdict despite expiry of 15 days.

ISLAMABAD   -  Two judges of the Supreme Court of Pakistan Saturday questioned the majority verdict in the reserved seats case. In their dissenting note they stated that the relief granted to the Pakistan Tehreek-e-Insaf (PTI) would be self-created.

Justices Amin Uddin Khan and Justice Naeem Akhtar Afghan, who dissented from the majority’s verdict delivered by a 13-member larger bench, in their29-page note, said that PTI was neither before the Court nor tried to become a party before the Election Commission of Pakistan (ECP). The 8-5 majority verdict had declared PTI eligible for reserved seats for women and minorities, overturning previous decisions by the Peshawar High Court and the ECP.

“We are also of the firm view that any other constitutional body cannot be asked to take steps or make decisions not permissible under the Constitution,” read the judges’ note. “We would also have to substitute Articles 51, 106, and Section 104 with those in consonance with the relief granted through the majority judgment.”

In their dissent, the judges noted that PTI did not participate in the February 8 elections as a political party, with its chairman running as an independent candidate. They argued that granting relief to PTI would require the court to exceed its constitutional jurisdiction, suspend key constitutional provisions, and modify relevant sections of the Elections Act, 2017.

The dissenting judges also expressed concern about the delay in releasing the court’s detailed verdict, which could potentially impact the review petition filed against the order. They emphasised that their findings are based on two parts: their disagreement with the majority decision and their assessment of the appeals’ merits.

They highlighted that no disputes were raised about the joining of 39 and 41 individuals to the SIC as outlined in the majority’s short order, and no political parties contested this joining. Furthermore, they noted that despite suggestions to award reserved seats to PTI, the PTI counsel and other involved parties did not press for this during court proceedings.

The majority verdict had declared the PTI eligible for reserved seats for women and minorities in the assemblies after overturning the decisions of the Peshawar High Court (PHC) and the Election Commission of Pakistan (ECP). The detailed dissenting note pointed out that the SIC did not contest the February 8 nationwide polls as a political party, whereas, its chairman had also taken part as an independent candidate in the electoral event.

The dissenting judges further said for creating and carving out relief in these proceedings for PTI, the court “would have to travel beyond the jurisdiction conferred by Articles 175 and 185 of the Constitution and would also have to suspend Articles 51, 106 and 63 of the Constitution and section 104 of the Elections Act, 2017 along with the relevant rules”.

“We would also have to insert instead of Articles 51, 106 and section 104 (mentioned supra). Such articles and sections therein in substitution and in consonance with the relief granted through the majority judgment.”

On query by some members of the bench, whether the reserved seats can be given to PTI in the peculiar circumstances of this case, none of the counsels agreed to this, though the suggestion was made by some of the members of the bench repeatedly to the learned counsel for the appellant as well as to Salman Akram Raja — counsel for Kanwal Shauzab.

“I recall that Salman Akram Raja replied that he will not press that the seats be given to PTI, but the Court has the power to do so,” it read.

In a major legal victory for the PTI and a setback for the rulers, the apex court had on July 12 ruled that PTI was and is a political party that won general seats in the national and provincial assemblies in the February 8 elections, thus, is entitled to reserved seats.

The court, by a majority of 8:5, set aside the PHC’s judgement of March 25 and declared the ECP order of March 1 to be ultra vires the Constitution, without lawful authority and of no legal effect.

Justice Mansoor Ali Shah of the SC’s full bench announced the 8-5 majority verdict, nullifying the PHC’s order wherein it had upheld the ECP’s decision denying the reserved seats to the PTI-backed SIC.

The full bench led by CJP Isa also comprises Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Athar Minallah, Justice Syed Hassan Azhar Rizvi, Justice Ayesha Malik, Justice Shahid Waheed, Justice Irfan Saadat Khan and Justice Naeem Akhtar Afghan.

The ruling parties PML-N and PPP filed a review petition in the apex court against the verdict, which came as an unexpected legal victory for the main opposition party.

This not only paved the way for the PTI’s return to parliament, which was kicked out of the February 8 polls owing to the ECP’s December 2023 ruling but has also increased the pressure on the coalition alliance by changing the composition of the National Assembly.

The election watchdog had partially implemented the top court’s ruling by notifying 39 out of 80 Members of the National Assembly (MNAs) as PTI members last month

Additionally, the ECP also notified 93 lawmakers in Punjab, Khyber Pakhtunkhwa and Sindh assemblies as “returned candidates” of the Imran-founded party earlier this week, resurrecting the embattled party in parliament.

After the fragmentary implementation, the commission approached the apex court two weeks ago, seeking legal and constitutional guidance on the matter of the remaining PTI lawmakers in the national and provincial assemblies.