In a significant development, two judges of Pakistan’s Supreme Court, Amin-Ud-Din Khan and Naeem Akhtar Afghan, have issued a dissenting note challenging a majority decision regarding reserved seats for women and minorities in the country’s legislatures. The dissenting note, spanning 29 pages, was issued in response to a majority judgment delivered by the apex court’s full bench led by Chief Justice Qazi Faez Isa on July 12th, 2023. The controversy stems from the allocation of reserved seats to former Prime Minister Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) party.
Following the February 8th elections, PTI candidates contested and won as independents due to the party being stripped of its election symbol. Subsequently, they joined the Sunni Ittehad Council (SIC), a coalition of Islamic political and Barelvi religious parties in Pakistan. In July, an eight-judge majority on the Supreme Court accepted an appeal filed by the SIC against a Peshawar High Court (PHC) order that upheld an Election Commission of Pakistan (ECP) decision denying the SIC reserved seats. The Supreme Court ruled that PTI was eligible for over 20 seats reserved for women and minorities in Parliament.
The majority decision recognized 39 out of 80 SIC lawmakers as PTI members based on their party affiliation certificates submitted to the ECP prior to the election. The remaining 41 lawmakers were given 15 days to formally join the PTI. However, five judges, including Chief Justice Qazi Faez Isa, dissented from this majority order.
The dissenting note by Justices Aminuddin and Afghan, released before the detailed majority order, argues that the majority’s decision essentially created a new parliamentary party in the National Assembly and three provincial assemblies. This, they assert, was not a matter before the Supreme Court.
The dissenting judges contend that to grant relief to the PTI, the Supreme Court would have to exceed its constitutional jurisdiction under Articles 175 and 185. It would also necessitate suspending Articles 51, 106, and 63 of the Constitution, Section 104 of the Elections Act 2017, and relevant rules. They propose replacing these articles and sections with new provisions aligning with the relief granted by the majority judgment.
The dissenting judges criticize the majority decision for ignoring procedural rules, substantive provisions of law, and the Constitution. They argue that the PTI cannot be granted relief because it never attempted to become a party before the ECP, PHC, or Supreme Court, nor did it claim the reserved seats.
The dissenting note also raises concern over the delay in releasing the detailed majority order, particularly given the 15-day deadline mentioned in the short order. This delay, they argue, could render the government’s review petition against the court’s order ineffective. Therefore, they felt compelled to record their dissent based on the short order.
