After raising questions on the Supreme Court’s majority verdict in the reserved seats case, two judges of the top court stated in their dissenting note on Saturday that relief cannot be granted to the Pakistan Tehreek-e-Insaf (PTI) as the opposition party “was not before the Court nor tried to become a party before the ECP”.
The two SC judges — Amin-Ud-Din Khan and Naeem Akhtar Afghan — issued 29-page dissenting note in the majority judgment announced by the apex court’s full bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa on July 12 this year.
The majority 8:5 landmark verdict 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.
“We are also of the firm view that any other constitutional body cannot be asked to take any steps or decisions which are not permissible under the Constitution,” read the judges’ note.
Moreover, the dissenting judges 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.”
The jurists also raised questions over a delay in releasing of the SC’s detailed verdict despite the expiry of 15 days. “The delay may render infructuous, the review petition filed against the order of the court,” it read.
“Therefore, on the basis of the short order we have been compelled to record our findings, which are in two parts. The first part states why we are unable to agree with the majority decision and the second part states our decision on the appeals based on the merits of the case.”
Highlighting a point relating to the independent candidates, they observed: “None has ever disputed the joining to SIC of the 39 and 41 persons mentioned in Annexure A & B of the majority short order within three days, as prescribed by the Constitution.”
“The other contesting political parties, who were parties before the ECP as well as the High Court and before this Court also did not dispute their joining SIC. SIC does not dispute their joining SIC.”
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.
