Justices Aminuddin Khan and Naeem Akhtar Afghan of Supreme Court have issued a detailed dissenting opinion regarding the top court’s short ruling on allocation of reserved seats to the Pakistan Tehreek-e-Insaf (PTI) party, stating PTI was not a party to the current case.
Last month, the apex court had declared Imran Khan’s PTI eligible for seats reserved for women and minorities, dealing a major setback to Prime Minister Shehbaz Sharif’s ruling coalition.
The verdict was announced by a 13-member bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, and was live-streamed on the court’s YouTube channel.
A day prior to the verdict, the court had reserved its decision on the matter after closing the hearing on a set of appeals moved by the Sunni Ittehad Council (SIC) against the denial of reserved seats for women and non-Muslims to it by the Peshawar High Court (PHC) and the Election Commission of Pakistan (ECP).
PTI-backed candidates, who had contested and won the February 8 elections as independents after their party was stripped of its election symbol, had joined the SIC to form a coalition of convenience.
The top court on July 12 annulled the decision of the PHC while also declaring the decision of the election regulator null and void, terming it against the Constitution of Pakistan.
In the dissenting note issued on Saturday, the judges asserted, “Any decision not in accordance with the Constitution is not binding on any constitutional institution.” They further noted, “If 80 members of the assembly change their stance due to the majority decision, they can also be disqualified.”
The dissenting opinion, spanning 29 pages, was released after a short order was announced, but a majority decision was not issued despite passage of 15 days. “We are providing our findings based on the short order due to the delay in the detailed judgement,” the note stated.
The judges highlighted that the Sunni Ittehad Council (SIC) did not participate in the general elections as a political party. Even the chairman of the Sunni Ittehad Council contested as an independent candidate.
The note emphasised, “PTI was not a party to the current case, and to provide relief to PTI, it would be necessary to go beyond the jurisdiction conferred by Articles 175 and 185.” They added, “To grant relief to PTI, Articles 51, 63, and 106 of the Constitution would have to be suspended.”
The dissenting opinion included four letters written by the Sunni Ittehad Council to the Election Commission of Pakistan (ECP). It was mentioned that independent candidates were accepted by the ECP for the National Assembly and the three provincial assemblies after completing the procedure.
Referring to the 39 or 41 members of the assembly mentioned in the short majority decision, the justices stated, “This matter was never disputed.” No judicial proceedings raised the objection that members had not joined the Sunni Ittehad Council.
The judges pointed out that PTI was neither a party before the ECP nor the high court, and even at the time of the Supreme Court’s decision, PTI was not a party. “In the eight hearings of the 13-member full court, most of the time was spent on the judges’ questions,” they said.
They reiterated, “Any decision not in accordance with the Constitution is not binding on any constitutional institution,” adding, “If 80 members of the assembly change their stance due to the majority decision, they can also be disqualified.”
During the hearings, some judges questioned whether reserved seats could be given to PTI. “No lawyer agreed to allocate reserved seats to PTI,” noted the dissenting justices, “Even Kanwal Shauzab’s lawyer, Salman Akram Raja, clearly stated that he does not agree with granting reserved seats to PTI.”
