Dissenting notes: Two SC judges say majority’s order made ‘a new parliamentary party’

ISLAMABAD: Justice Amin-ud-Din Khan and Justice Naeem Akhtar Afghan stated 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.

“The majority’s short order in effect created a new parliamentary party in the National Assembly and three Provincial Assemblies and since this related to the pre-election process, it is clearly and unequivocally not an issue before this Court. In the process of the general elections, all events are scheduled and timebound and the same cannot be reversed,” they further wrote in their dissent notes, issued on Saturday.

A Full Court of 13 judges on July 12, 24 by majority of 8 to 5 ruled that Pakistan Tehreek-e-Insaf (PTI) is a political party and entitled to reserved seats of women and non-Muslims in the National and the Provincial Assemblies.

The dissent note of Justice Amin and Justice Afghan stated that the majority judgment ignores all rules of procedure, substantive provisions of law and the Constitution. It said that the detailed majority judgment has not yet come to surface, despite the expiry of the 15 days, mentioned in Section 7 of Supreme Court (Practice and Procedure) Act, 2023. The delay may render infructuous, the review petition filed against the order of the court, observed the judges.

Justice Amin and Justice Afghan on Saturday announced their detailed judgment on the SIC petitions for reserved seats of women and non-Muslims.

Both the judges wrote that the Full Court heard the petitions filed under Article 185(3) of the Constitution against the judgment of the five-member bench of the Peshawar High Court, whereby, writ petitions filed by the appellants were dismissed.

The independent returned candidates joined the appellant, and their joining was duly processed, accepted and notified by the ECP with regard to the National Assembly as well as the three Provincial Assemblies. None has ever disputed the joining to SIC of the 39 and 41 persons mentioned in the majority short order within three days, as prescribed by the Constitution.

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The notifications as the returned independent candidates in the general elections were issued and their submitting affidavit and requisite documents etc. for joining SIC. 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.

The said persons have also never disputed their joining the SIC.

Furthermore, PTI was not a party to these proceedings starting from the ECP, then before the High Court nor before this Court. Even at the time of the announcement of the short order neither any person from PTI nor PTI joined the proceedings.

Not a single one of said 80 persons, mentioned in the short order, were parties before this Court collectively or in their individual capacity. They were never heard. The claim of the SIC before the ECP was that SIC was entitled to the reserved seats on the basis of the said persons joining SIC.

The judgment noted that Salman Akram Raja, counsel for Kanwal Shauzab, on the query from the bench members replied; “that he will not press that the seats be given to PTI, but the Court has the power to do so.”

“The said 39 plus 41 persons as mentioned in the majority’s short order did not come before this Court nor were they heard. The majority short order decides 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 this Court, or before the High Court.

“Not only the appeals filed by the SIC have been dismissed by the majority order, as no relief has been granted to SIC but independent members who joined the SIC have also been snatched from the SIC and that too without hearing the above said 39 plus 41 persons.”

Unless Articles 51, 106 and 63 of Constitution are suspended and in their place new articles in consonance with the relief granted through the majority order are inserted in the Constitution, the relief which has been granted to the PTI cannot be granted.

Article 175 of the Constitution has been ignored. The constitutional limits of jurisdiction under Article 185 of the Constitution have been ignored.

All substantive as well as procedural law with regard to parties to lis have been ignored.

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.

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. For a specific date i.e. 6.5.2024 the notification of returned candidates for special seats has been quashed, however before that date their notification and acts are held to be valid. It is incomprehensible how can this be done, as it is without any backing of Constitution.

The majority judgment virtually declares that said 80 persons are not honest and ameen in accordance with Article 62(1)(f) of the Constitution.

Copyright Business Recorder, 2024