Reserved seat case: Dissenting note of Justices Aminuddin Khan, Naeem Afghan surfaces

ISLAMABAD: Justice Aminuddin Khan and Justice Naeem Akhtar Afghan issued a dissenting note in the reserved seats, maintaining that providing relief to Pakistan Tehreek-e-Insaf (PTI) is beyond the jurisdiction of Articles 175 and 185 of the Constitution as it was not a party in the case, ARY News reported.

In a 29-page dissenting note, the two judges maintained, “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.”

Justice Aminuddin Khan and Justice Naeem Akhtar Afghan disagreed with the majority decision, stating that the Sunni Tehreek Council did not participate in the general elections as a political party and even its Chairman Shaibzada Hamid Raza contested the elections as an independent candidate.

“Any order of the Court which is not in consonance with the constitutional provisions is not binding upon any other constitutional organ of the state,” the dissenting note read.

The two judges maintained that Election Commission of Pakistan had allocated reserved seats to other political parties in accordance with the Constitution and law.

Justice Aminuddin Khan and Justice Naeem Akhtar Afghan in their dissenting note also raised questions over the non-issuance of a detailed verdict despite the lapse of many days.

The two judges also listed ‘hurdles’ before them which forced us to disagree with the majority decision.

“Not only SIC has not been granted relief claimed by it but all those who have joined it have been taken off and for the rest of the tenure of the National as well as Provincial assemblies SIC has been kicked out from the assemblies. The relief granted to PTI will be self-created and has been carved out relief by the majority, as none has claimed this relief in these proceedings.,” the dissenting note read.

The two judges noted that the joining of 80 independent returned candidates to SIC was never disputed by anyone. The said 39 plus 41 persons as mentioned in the majority’s short order did not come before the SC nor were they heard.

They maintained that the majority short order decided about their rights or luck thereof without their consent or even hearing them. Their joining of SIC has been undone without such prayer of anyone before the court, or before the High Court.

“In conclusion, it is clear that the superstructure created by the majority’s short order, does not in any way come within the ambit of the jurisdiction vested in this Court or in the Constitution,” Justice Aminuddin Khan and Justice Naeem Akhtar Afghan maintained in the dissenting note.

SC verdict

A 13-member bench of the top court, headed by Chief Justice Qazi Faez Isa, ruled that the PTI is eligible for the allocation of reserved seats, dealing a major setback to Prime Minister Shehbaz Sharif’s ruling coalition.

Justice Mansoor Ali Shah announced the 8-5 majority verdict, setting aside the Peshawar High Court’s (PHC) order wherein it had upheld the Election Commission of Pakistan’s (ECP) decision denying the reserved seats to the SIC.

Chief Justice of Pakistan (CJP) Qazi Faez Isa, Justice Jamal Mandokhail, Justice Naeem Afghan, Justice Yahya Afridi, and Justice Ameenuddin Khan opposed the majority decision.

Reserved seats issue

The reserved seats issue came to limelight after over 80 Pakistan Tehreek-e-Insaf (PTI) backed independent candidates emerged victorious in the February 8 elections.

The SIC then approached the ECP on February 21 seeking allocation of reserved seats.

However, the PTI suffered a setback after the electoral body, citing the party’s failure to submit its list of candidates, denied allocating the reserved seats to the SIC via its 4-1 majority verdict on March 4.

The election commission distributed the reserved seats for women and minorities among other political parties.

Read more: PTI ‘committed suicide’ by joining SIC, says CJP Isa

The PTI-backed SIC had approached the court after the ECP refused to allocate the reserved seats due to the party’s failure to submit its list of candidates before the deadline. The Peshawar High Court (PHC) upheld the ECP’s decision, leading the SIC to appeal to the Supreme Court.

In the Khyber Pakhtunkhwa Assembly – according to a notification, the ECP allocated one reserved seat each to Jamiat Ulema-i-Islam Pakistan, Pakistan Muslim League-Nawaz (PML-N) and Pakistan People’s Party (PPP).

In Sindh Assembly – allocated reserved seat for women to Muttahida Qaumi Movement-Pakistan (MQM-P) and PPP. PPP’s Samita Afzal and MQM-P’s Fouzia Hameed elected on reserved seats.

Subsequently, the PHC ruling allowed the ruling coalition, comprising the Pakistan Muslim League-Nawaz (PML-N), Pakistan Peoples Party (PPP), and other allies, to gain a two-thirds majority in the National Assembly. This decision increased the PML-N’s seats to 123 and the PPP’s to 73, while the SIC held 82 seats.