Observing that the eight-five majority judgment in the reserved seats case ignored all rules of procedure, substantive provisions of law and the Constitution, two judges who were in the minority in the full bench of the top court, have maintained that the eight brother judges suspended certain articles of the Constitution to grant relief to the Pakistan Tehreek-e-Insaf (PTI), which was not even a party in the main case, warning that it could have disastrous implications, leading to another constitutional crisis.
Following in the footsteps of Chief Justice of Pakistan Qazi Faez Isa, they also questioned the delay by the eight judges in issuing detailed reasons for their majority judgment.
The two judges, Justice Aminud Din Khan and Justice Naeem Akhtar Afghan, expressed this in their joint dissenting note in the reserved seats case, which in July not only recognised the PTI as a parliamentary party but declared it eligible for general seats and the reserved seats for women and minorities. The majority verdict also allowed all those who had contested as independents in the February 8 elections - which all PTI candidates had done after the party symbol 'bat' was withdrawn by the top court because the party failed to hold intra-party elections as per legal requirements - to once again choose which party did they want to join even if they had chosen to join the Sunni Ittehad Council (SIC).
The two judges made it clear that any court order that is not in consonance with constitutional provisions is not binding upon any other constitutional organ of the state (for example, the Election Commission of Pakistan).
"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 dissenting note observed.
"Previously, there was a term used which was 'reading into the Constitution' or 'reading down the Constitution,' but now a new phrase has been introduced that of 'inserting new Articles in consonance with the relief to be granted in the peculiar circumstances of the case' in the Constitution," Justice Aminuddin and Justice Afghan lamented, as they admonished their brother judges who consented to the majority view for their judicial overreach.
"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," the dissenting note maintained.
"All the rules of procedures for 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 PTI."
Delayed judgement and review petitions
The two judges have also expressed their concerns regarding the decision of the three-member bench fixing committee not to fix the review petitions filed by the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan Peoples Party (PPP).
"The detailed majority judgment 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," the two judges observed in their scathing note.
The dissenting note further observed that the independent returned candidates voluntarily joined the Sunni Ittehad Council (SIC) and their joining was duly processed, accepted and notified by the Election Commission of Pakistan. They further pointed out that no one has ever disputed these independent returned candidates joining the SIC.
"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?" the two judges dissented.
"In our view, neither Article 62(2), 63 and 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 the 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 dissenting note has opined that in this matter, only the appellate jurisdiction of the Supreme Court was invoked by filing petitions under Article 185(3) of the Constitution, whereafter leave was granted.
"The matters alien to the jurisdiction vested in this court cannot be considered nor decided by this court," the two judges asserted.
"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."
It further added that if the independent returned candidates, that later joined SIC, take any step on the basis of this judgment, they may lose their seats as a returned candidates because they would be violating the Constitution.
"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."
"If the said 80 persons change their stance on the basis of the majority judgment, 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," they stated.
"The joining of independent candidates only enhances the proportion of rights in the reserved seats of that party, if that party has won seats. By the 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. There is absolutely no silence about the situation in the Constitution. The Constitution is absolutely clear, and which has rightly been held so by the learned five-member Bench of the Peshawar High Court through the impugned judgment," the two judges held in their dissenting note.
"By the majority's order, virtually all the persons who joined the SIC and their joining of SIC has been undone.
Further positions in the process of working of the proportional representation system of political parties is affected through the majority's order."
In their dissenting note, the two judges further stated that Zartaj Gul, who was elected from NA-185, had been appointed by the SIC as the party's leader in the National Assembly.
"By the majority judgement, her position, the other positions given to the SIC, also go."