ISLAMABAD: Justice Syed Mansoor Ali Shah on Monday suggested that the controversy over the denial of reserved seats to the Sunni Ittehad Council (SIC) could be ended if the Election Commission of Pakistan (ECP) grants another three days to those candidates, who had joined the SIC, to decide afresh whether to select some other political party.
“This will be end of the matter instead of getting into major interpretation of the election laws,” observed Justice Shah — a member of the 13-judge full court.
The observation came when the full court took up a set of petitions moved by SIC Chairman Sahibzada Muhammad Hamid Raza, challenging the Peshawar High Court’s (PHC) March 14 denial of reserved seats to the SIC.
Article 51(6) of the Constitution allows independent candidates to join a political party within three days of the publication of the names of returned candidates in the official gazette.
Question of what is a parliamentary party dominates discussion as full court takes up SIC reserved seats case
On May 6, the apex court had suspended the PHC’s judgement as well as the ECP’s March 1 decision of depriving the SIC of reserved seats.
On Monday, the PPPP, PML-N and JUI-F opposed the petition filed by the SIC.
Since several observations were being made by the judges during the hearing, Chief Justice of Pakistan (CJP) Qazi Faez Isa repeatedly requested them to let the counsel build his case and then pose questions.
At one point, the CJP apparently referred to his petition against the presidential reference that was filed against him, and mentioned what he had stated once by asking the judges, “If my lords have decided the matter, then I rest my case.”
But the CJP hastened to add that he was making the observation on a lighter note. “We are here to listen to the counsel, and then we will decide the matter.”
However, Justice Munib Akhtar described it as an unfair statement, saying the full court was conducting the proceedings and every judge was entitled to ask whatever he wanted. Nothing should be implied to the effect that the minds of the judges had been made up.
Justice Shah wondered whether candidates, who joined SIC, had the option to join a party of their choice as they had been refused this opportunity earlier, so they might want to exercise this option now to go to some other political party.
Why not PTI?
Justice Jamal Khan Mandokhail wondered why, instead of joining the SIC, these independent candidates did not join PTI when people had voted for them because they contested from the PTI platform.
He regretted that PTI had created an unnecessary hype on the denial of its election symbol ‘bat’, which not only misguided voters but also its own party members.
He also wondered whether the candidates, who joined the SIC after the elections, had presented any certificate showing affiliation with their original political party at the time of filing of nomination papers. If yes, then how could they now claim to be independent candidates?
Keeping in view Section 66 of the Elections Act, 2017, Justice Mandokhail also wondered whether the ECP enjoys the authority to declare a candidate independent when a political party had issued a certificate of its affiliation.
Justice Mandokhail asked senior counsel Faisal Siddiqui, representing the SIC, to explain whether a candidate could expel himself from a party after filing nomination papers from that party’s platform and could the political party itself expel a candidate after he won the elections. These questions need answers, the judge observed.
Mr Siddiqui contended that once the ECP accepted them as a political parliamentary party, it cannot deny them the reserved seats.
ECP role questioned
Justice Athar Minallah asked if the ECP assume the role of an adversary to a political party or if it has to ensure that each political party gets its due right.
The ECP is bound to fulfil its obligation, Justice Minallah observed, adding that even if the SIC had committed a wrong, it was the duty of the commission to rectify that mistake.
Justice Akhtar wondered how could the ECP fulfil its duty by violating provisions like Article 218 of the Constitution. He said when the SIC had never contested the general elections, then it should not be there in the parliament but it was there. “It seems to me logically there was an apparent illogicality here.”
The only way ECP could have put their names for the reserved seats would be by implicitly recognising that behind them stood PTI and should recognise the number of seats won by them, Justice Akhtar said.
Mr Siddiqui argued that if the Constitution is silent, the leftover reserved seats cannot be allocated to any other political party.
The Supreme Court will resume the case today (Tuesday).
Published in Dawn, June 4th, 2024
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