ISLAMABAD: The Constitutional Bench (CB) on Friday overturned the Supreme Court’s earlier judgement in the reserved seats case— effectively taking away reserved seats from the PTI and handing them to their rival parties in the national and provincial legislatures.
The decision, handed down by a majority of seven judges, supersedes the July 12, 2024 majority judgment by eight judges, which had declared the Pakistan Tehreek-e-Insaf (PTI) eligible for reserved seats for women and non-Muslims in the assemblies.
“[B]y majority of seven namely Justice Amin-ud-Din Khan, Justice Musarrat Hilali, Justice Naeem Akhter Afghan, Justice Shahid Bilal Hassan, Justice Muhammad Hashim Khan Kakar, Justice Aamer Farooq and Justice Ali Baqar Najafi, all civil review petitions are allowed and the impugned majority judgment of July 12 is set aside, as a consequence thereof, Civil Appeal Nos. 333 of 2024 and 334 of 2024 filed by the Sunni Ittehad Council (SIC) are dismissed and the judgment rendered by the Peshawar High Court is restored,” announced Justice Aminuddin Khan, who was presiding over the 12-judge CB hearing the case.
Amir Wasim & Ziauddin
Through the March 25, 2024 order, the Peshawar High Court (PHC) had deprived the Sunni Ittehad Council (SIC) — the party joined by PTI-backed independents after the Feb 8, 2024 polls — of reserved seats.
On the date of the first hearing of this case, Justices Ayesha A. Malik and Aqeel Ahmed Abbasi had rejected outright the review petitions filed by the PML-N, Election Commission of Pakistan(ECP) and PPP.
Subsequently, their names were excluded from the strength of CB, even though they were considered part of the bench.
Meanwhile, Justice Jamal Khan Mandokhail partly allowed the review petitions and maintained his original order of giving 39 seats to PTI, but reviewed the majority judgment to the extent of 41 seats.
In his July 12dissenting order, Justice Mandokhail had declared PTI a parliamentary party consisting of 39 members, and thus entitled to reserved seats. Therefore, the ECP should recalculate and reallocate the reserved seats amongst the political parties, including PTI, he held.
The July 12 majority judgement had asked the rest of the 41 independent candidates to file signed and notarised statements before the commission within 15 days — explaining that they contested the Feb 8 general elections as a candidate of a particular political party. Consequently, the ECP had notified them as PTI members, in light of the judgement.
Justice Muhammad Ali Mazhar and Justice Syed Hasan Azhar Rizvi, who were part of the earlier majority judgement, also reviewed their positions and allowed the review petitions.
However, they posited that since the controversy at hand could not be resolved, either by the PHC or the Supreme Court, the ECP should examine and consider afresh the nomination papers/declaration and other relevant documents ofall 80 returned candidates, with regard to their affiliation, and take a decision on the allocation of reserved seats within 15 days from receiving a copy of their short order.
What the decision means
“Practically, the beleaguered PTI is no longer a parliamentary party, therefore the 77 reserved seats — including the National Assembly and the provincial assemblies — will be allocated among the parliamentary parties present in the respective assemblies, since they cannot be kept vacant,” a senior counsel explained.
Consequently, the ECP will also have to recall its suspension of earlier victory notifications, which it had issued soon after the July 12 judgement.
Of these 77 special seats, 22 seats will be divided amongst different political parties in the National Assembly, of which 19 seats are allocated for women and three for non-Muslims, he explained.
Of the 22 vacant reserved seats in the National Assembly, 15 will be allocated to PML-N, four to PPP and three to JUI-F, which sits on the opposition benches, he said.
After this process, the ruling coalition will achieve a two-thirds majority; in a house of 336, the magic number required to attain a two-thirds majority is 224. PML-N’s tally will rise from 110 to 125, the PPP’s strength will increase from 70 to 74, while the JUI-F will have 11 seats rather than the 8 they currently hold.
As ten judges had allowed the review petitions — seven completely and three partially — the counsel explained, those who had earlier joined the SIC could face the defection clause under Article 63A of the Constitution, if they chose to rejoin PTI after this judgement.
Last-minute recusal
At the outset of Friday’s proceedings, the strength of the 11-judge CB was further reduced to ten when Justice Salahuddin Panhwar recused himself.
During the hearing, while pointing towards senior counsel Hamid Khan, Justice Panhwar observed that he felt personally hurt with the way the counsel had argued. Since the counsel had no faith in him, he had no option but to recuse himself.
With the permission of the chair, Justice Panhwar read out an order he had written, stating that during the proceedings of the reserved seats case, all counsel — including Faisal Siddiqi for SIC and Salman Akram Raja for PTI and Kanwal Shauzab — had expressed confidence in the composition of the bench.
However, during the previous hearing, senior counsel Hamid Khan had raised an objection targeting the inclusion of certain judges — including Justice Panhwar himself — who were appointed after the passage of the 26th Constitutional amendment.
The counsel has questioned the propriety of our participation in this bench for the adjudication of the present matter, Justice Panhwar observed.
“In the light of the objection raised and in deference to the judicial propriety, irrespective of its merit or the timing of assertion, I considered it appropriate to recuse myself from further hearing of this case,” Justice Panhwar announced, adding that his recusal was not an admission for disqualification, but intended to uphold the institutional integrity and objectivity of these proceedings.
“Greatly appreciate that,” replied Hamid Khan. At this, Justice Khan retorted that it was not a matter of appreciation.
“This is only because of your conduct,” regretted Justice Jamal Khan Mandokhail. The court then retired and assembled later after a considerable time.
The recusal of Justice Panhwar was also noted by the CB in its short order, saying that after he recused himself and contributed a separate note, the bench was reconstituted with all available members of the CB.
