Islamabad (Web Desk): Supreme Court’s (SC) Justice Ayesha A Malik on Tuesday said that the reserved seats should be allocated on the principle of proportional representation.
Justice Malik made these remarks during the hearing of Sunni Ittehad Council (SIC) plea against denial of reserved seats for women and minorities in the national and provincial assemblies.
A full court 13-member bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Syed Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hassan Azhar Rizvi, Justice Shahid Waheed, Justice Irfan Saadat Khan and Justice Naeem Akhtar Afghan, is hearing the petition.
At the outset of the hearing, SIC lawyer Faisal Siddiqui stated that Sahibzada Hamid Raza had contested the election independently but had mentioned his affiliation with the SIC in the nomination papers.
Referring to the Peshawar High Court's (PHC) decision, Makhdoom Ali Khan explained that the Election Commission of Pakistan (ECP) had declined to allocate specific seats to the SIC, a decision upheld by the PHC.
CJP expressed surprise that Salman Akram Raja and Faisal Siddiqui did not discuss the PHC's decision, focusing only on the ECP’s ruling.
Justice Athar Minallah said that Hamid Raza had indicated his commitment to the SIC in his nomination papers. Justice Jamal Mandukhel added that party affiliation required a party ticket.
Makhdoom Ali Khan clarified that Hamid Raza had submitted a letter stating he did not contest the election under any party banner.
Justice Minallah stated that the election symbol does not necessarily indicate party participation.
Justice Ayesha Malik questioned why Hamid Raza was prevented from contesting on a party ticket, suggesting the case could take a different turn if confirmed by the ECP.
Justice Muhammad Ali Mazhar pointed out that although the SIC had an election symbol, no candidate ran under it. Makhdoom Ali Khan noted this was not raised in the appeals.
The CJP emphasised that judges should only consider points raised in appeals, not create or undermine any party's case.
Makhdoom Ali Khan argued that the SIC, as the petitioner, did not field any candidates or provide a specific seat list.
Justice Minallah stated that if proven, Hamid Raza being a candidate for the SIC would alter the case.
Justice Mandukhel discussed the implications of giving a party certificate and defection rules under Section 63A, adding that Form 33 would clarify party affiliations.
Justice Minallah noted that it was acknowledged that all PTI candidates were declared independent.
Justice Shahid Waheed asked if any candidate had renounced party affiliation after submitting their papers.
Justice Shah highlighted that on March 4, the ECP stated all candidates were independent, questioning the basis for this declaration.
Justice Minallah discussed the current political landscape and its implications.
Justice Muneeb Akhtar questioned how the ECP could declare a candidate independent if they had shown party affiliation and couldn't withdraw it.
CJP Isa stated that PTI is not a party in this case, nor are there any elected representatives involved. He emphasized that the arguments presented before the court will remain unchanged.
He questioned why matters not directly before the court were being discussed, asserting that the merits of ECP decisions, whether good or bad, should not be judged if they have not been legally challenged.
The CJP clarified that the court's concern lies solely with the contents of the case file, not external perceptions or pressures.
Justice Mansoor Ali Shah highlighted that the SC’s role, as the highest judicial body, is to safeguard the people's right to vote, especially in rural areas. He raised concerns about how the ECP could unilaterally declare candidates independent.
CJP Isa affirmed his judicial oath to uphold the constitution and the law. Justice Athar Manullah stressed the importance of transparent elections as mandated by the constitution, emphasizing that the right to vote is fundamental.
Justice Mandukhel maintained his stance that switching parties under the guise of party affiliation is an invalid concept.
Justice Shah pointed out that the entire issue stemmed from the ECP's decision to declare party candidates as independent, questioning the legitimacy of this fundamental issue.
Justice Ayesha Malik questioned whether SIC wins or loses this case, what will other parties benefit from it?"
She remarked noting that the reserved seats can only be allotted on the principle of proportional representation and not contrary to that.
Justice Malik called on those claiming additional seats to clarify their stance and respect the positions of other parties.
Justice Athar Minallah emphasized that currently, there is a failure to uphold the constitution. “Rather than confronting the reality, we are avoiding it,” he said, observing that many are attempting to give the impression that we are only discussing historical matters.
CJP Isa commented that it is necessary to acknowledge past errors. Justice Minallah asserted that there will come a time when we must acknowledge that we cannot ignore violations of the constitution indefinitely.
Justice Athar Minallah stressed that the SC's most significant case concerns the February 8 elections, cases involving missing individuals, and breaches of fundamental rights, which are not merely political in nature.
Subsequently, the court adjourned the hearing till 11:30am on Thursday.
During the hearing on Monday, CJP Qazi Faez Isa remarked why the Pakistan Tehreek-e-Insaf (PTI) "committed suicide" when it decided to merge with SIC following the February 8 elections.
It is pertinent to mention that following the February 8 elections, where PTI-backed independent candidates joined SIC after the PTI lost its electoral symbol 'bat' due to a ruling by the apex court.
The ECP withdrew PTI’s electoral symbol, a move ratified by the Supreme Court.
The ECP, in a 4-1 verdict ruled in March that SIC could not claim reserved seats due to significant legal flaws and failure to submit a mandatory party list for such seats.
Later, the ECP redistributed these seats among other parliamentary parties, benefiting primarily Pakistan Muslim League-Nawaz (PML-N) and Pakistan Peoples Party (PPP) with 16 and five additional seats respectively, while Jamiat Ulema-e-Islam-Fazl (JUI-F) received four seats. PTI rejected this verdict as unconstitutional.
In the same month, the Peshawar High Court (PHC) dismissed an SIC plea challenging the ECP's decision to deny them reserved seats.
On May 6, a three-member Supreme Court bench, led by Justice Mansoor Ali Shah and including Justice Muhammad Ali Mazhar and Justice Athar Minallah, suspended the PHC decision. The case was then referred to a larger bench due to its constitutional implications.
In late May, a full court had been constituted to hear the case, comprising all judges except Justice Musarrat Hilali.
As the case was taken up on June 3, Justice Mandokhail had noted that the public did not vote for independent candidates but those nominated by the PTI in the February 8 general elections.
Meanwhile, Justice Shah suggested that the controversy could be ended if the ECP gave the formerly independent candidate another three days to decide afresh whether to join another political party.
On June 22, the ECP justified its decision to deny reserved seats to SIC for women and non-Muslims through a statement submitted by Senior Counsel Sikandar Bashir Mohmand to the Supreme Court.
The electoral body argued that SIC did not qualify for reserved seats as it did not meet the constitutional criteria of being a political party under Articles 51(6)(d), 56(6)(e), and 106(3)(c) of the Constitution.
Additionally, SIC failed to submit a timely priority list (Form 66) for reserved seats as required by the election program.
The ECP also pointed out that Article 3 of SIC's constitution restricted party membership to adult Muslims only, which contradicted constitutional provisions on freedom of association, freedom to profess religion, and equality of citizens (Articles 17, 20, and 25).
