Two Pakistan Supreme Court judges issue unprecedented dissent in reserved seats case

Islamabad: In an unprecedented move, two Pakistan Supreme Court judges have issued a dissenting note on a majority decision on the reserved seats for women and minorities in legislatures and said some provisions of the Constitution need to be suspended to allow former prime minister Imran Khan's party to get these seats.

The two Supreme Court judges — Amin-Ud-Din Khan and Naeem Akhtar Afghan — issued a 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.

Candidates backed by Khan's Pakistan Tehreek-e-Insaf (PTI) party, who had contested and won the February 8 elections as independents after their party was stripped of its election symbol, had joined the Sunni Ittehad Council (SIC), a political alliance of Islamic political and Barelvi religious parties in Pakistan, to form a coalition of convenience.

Eight judges of a 13-member full court on July 12 accepted an appeal filed by the Sunni Ittehad Council (SIC) against a Peshawar High Court (PHC) order that upheld an Election Commission of Pakistan (ECP) decision not to grant the SIC reserved seats for women and minorities in legislatures.

The Supreme Court ruled that Khan's party was eligible for more than 20 seats reserved for women and minorities in Parliament. The majority judges had accepted 39 out of the 80 SIC lawmakers as PTI members as they had submitted their party affiliation certificates to the ECP ahead of the general election.

They had also allowed the remaining 41 lawmakers to join the PTI within 15 days.

Five judges including Chief Justice Qazi Faez Isa, Justice Jamal Khan Mandokhail, Justice Yahya Afridi, Justice Aminuddin Khan and Justice Naeem Akhtar Afghan disagreed with the majority order.

The dissenting note from Justice Aminuddin and Justice Afghan came prior to the unveiling of the detailed majority order, Dawn newspaper said.

The dissenting judgement observed that the majority’s short order in effect had created a new parliamentary party in the National Assembly as well as the three provincial assemblies, which clearly and unequivocally was not an issue before the apex court.

The note said for creating and carving out relief for the PTI, the SC 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. Such articles and sections therein in substitution and in consonance with the relief granted through the majority judgment.

The judges stated that the majority judgment ignored all rules of procedure, substantive provisions of law and the Constitution. They said relief cannot be granted to the PTI as the PTI neither tried to become a party before the ECP, the PHC or the SC nor was claiming the reserved seats.

The minority note also expressed wonder at the delay in unveiling the majority order despite the expiry of the 15 days mentioned therein.

"The delay may render infructuous the review petition filed [by the government] against the order of the court. Therefore, on the basis of the short order we have been compelled to record our findings," the note added.