29-page dissenting note: SC judges blast majority ruling over ‘self-created relief for PTI’

ISLAMABAD: Two judges of the Supreme Court Justice Amin-ud-Din Khan and Justice Naeem Akhtar Afghan on Saturday held that the relief granted to the PTI will be self-created and the majority (judges) have carved out the relief, as none has claimed this relief in the case.

In their 29-page dissenting note, both the judges declared that the majority judgement ignored all rules of procedure, substantive provisions of law and the Constitution.

They held that relief cannot be granted to Pakistan Tehreek-e-Insaf (PTI) as neither it tried to become a party before the Election Commission of Pakistan (ECP), a high court or the apex court nor the party was claiming the reserved seats, which were the issue in the litigation. The two judges noted that the if the said 39 plus 41 persons take any step on the basis of this judgement which is not in accordance with the Constitution they may lose their seats as a returned candidates on the basis of violation of the Constitution.

On July 12, the apex court by a majority 8-5 judgement delivered by a 13-member Full Court had declared that the PTI was eligible for getting reserved seats for women and minorities in the National and provincial assemblies after setting aside the judgement of Peshawar High Court and order passed by the ECP.

Justice Amin Uddin Khan and Justice Naeem Akhtar Afghan had, however, dissented with the majority judgement, upholding the PHC verdict and ECP order, and had dismissed the appeal of Sunni Ittehad Council (SIC).

The two jurists said that the detailed majority judgement has not yet come to surface despite the expiry of the 15 days mentioned therein. The delay may render infructuous, the review petition filed against the order of the court. “Therefore, on the basis of the short order we have been compelled to record our findings, which are in two parts,” they added.

“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,” the two judges held, adding that if the said 80 persons change their stance on the basis of the majority judgement, they will be guilty of violating their oath, which is provided under Article 65 (Third Schedule), being the oath for the members of the National Assembly.

“For creating and carving out relief in these proceedings for PTI, we 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,” the two judges maintained.

The two judges held that they 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 judgement. “We do not have the courage to go to such an extent to give relief to a party who is not before the court or who did not join the proceedings and pray for such relief,” Justice Aminuddin and Justice Afghan held.

They noted that all the rules of procedures of proceedings before the Supreme Court and the Supreme Court Rules 1980 would also have to be ignored as neither any party before the court asked in writing nor orally for the relief which has been granted to the PTI.

“Regarding joining of 80 persons no one has denied that they have joined SIC, ECP does not deny this nor any other contesting party denies it,” the two judges noted, adding that even the PTI does not deny this, who then are we to undo all these things and reverse the same and create a new process plus create a new and arbitrary time limit for joining any party of their choice by disregarding the mandate of the Constitution.

“In our view neither Article 62(2), 63 & 63-A have been suspended nor can be suspended, therefore, any affidavit contrary to the provisions of the affidavits already filed will entail the penal consequences of non-seating such members of National Assembly and Provincial Assemblies if he/ she files a fresh affidavit in contradiction to his/ her previous affidavit and joins any other party,” the two judges noted, adding that any order of the apex court which is not in consonance with the constitutional provisions is not binding upon any other constitutional organ of the state.

The two judges held that they are clear in their mind that if an independent candidate joins a party, though it may be listed as a political party with the ECP, does not make that party entitled for the reserved seats.

Both the judges noted that the joining of independent candidates only enhances the proportion of right in the reserved seats of that party if that party has won seats. They held that by joining of independent candidates with any political party does not create a right in favour of that political party to become eligible for reserved seats only on the basis of the joining of independent candidates.

“There is no question of disproportionate allocation of reserved seats as the seats are for the political parties entitled to the same,” the two judges declared, adding that a political party which is not entitled for the same cannot claim proportionate allocation in the reserved seats, therefore, there is no question of disproportionate allocation of seats to political parties not entitled for the seats, in accordance with the formula of distribution of seats presented by the attorney-general.

They noted that the seats were given to the political parties which were entitled for the same, adding that the formula of the distribution has not been specifically challenged by the appellants.

“Even the majority judgement of this court as well as our other learned brothers are unanimous on the point that SIC is not entitled to the reserved seats,” the two judges held, adding that the ECP on the basis of admitted facts and in accordance with Article 51(6)(d) and Article 106(3) allocated seats in accordance with law through the proportional representation system of political parties’ lists of candidates on the basis of the total number of seats secured by each political party.

“Admittedly, the SIC did not participate in the elections as a political party and, therefore, it did not file any list of candidates in accordance with section 104 of the Elections Act, 2017,” the two judges noted, adding that none of the parties before the court or anyone else disputed the election programme issued by the ECP for the elections held on February 8, 2024.

They noted that the SIC counsel wants to take benefit of the proviso to Clause (d) of sub-clause (6) of Article 51 that the interpretation that even when a party has not participated in the elections and has not won a single seat, if the independent candidates join it then such party is entitled to the reserved seats for women and non-Muslims, we are afraid that by no stretch of the imagination this interpretation of the proviso can be as the counsel for the appellants wants the interpretation to be.

The two judges noted that the proviso only enables adding to the seats won by a political party in the elections as is clearly mentioned, that the total number of general seats won by a political party will include the independent returned candidate or candidates who may duly join such political party.

“Such political party means a party which has won seats and is in parliament and not a party who has not participated in the elections and filed not a single nomination paper by any candidate of the said party,” the two judges held, adding that even if all the independent candidates join the said party they would not be entitled to reserved seats.

In this view of the matter, two judges held that the view taken by the ECP as well as by the PHC five-member bench is absolutely correct and in accordance with the Constitution.

The two judges declared that the PHC had rightly dismissed the writ petitions filed by the appellants, and the appeals are liable to be dismissed as there is no defect in the judgement.

These are the detailed reasons for dismissing the appeals. In the connected civil petitions leave has been sought against the PHC judgement, however, as the appeals have been dismissed on merits, therefore, there is no need to further dilate upon the petitions and the civil miscellaneous applications, and the same are also dismissed, the two judges concluded.