Dissenting note: Relief cannot be granted to PTI in reserved seats case, say SC judges

• "SIC did not contest Feb 8 nationwide polls as a political party".
• Jurists question "infructuous" delay in top court's detailed verdict.
• None of counsels agreed to granting reserved seats to PTI: dissenting note.

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.

Reserved seats judgment

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.

The electoral body submitted a plea to the top court's registrar via its secretary Omar Hamid Khan to seek an elaborated version of its July 12 order regarding the PTI-backed independent candidates.

The ECP raised some queries before the top court despite receiving the relevant party association particulars from the PTI-backed independent legislators.

In its civil miscellaneous application related to the SC order, the commission stated it was facing difficulty in implementing the order as the "PTI at the moment has no organisational structure for confirmation of the statements of MNAs and MPAs, purportedly belong to PTI".

The poll organising body solicited the SC's guidance on the legal points to implement the top court’s order in its true spirit.