ECP ‘channelising’ returned candidates of a political party into ‘independents’: Justice Akhtar

Published June 24, 2024
A full bench of the Supreme Court on June 24 hears the Sunni Ittehad Council’s (SIC) plea against the denial of reserved seats in assemblies for women and minorities. — SC YouTube
A full bench of the Supreme Court on June 24 hears the Sunni Ittehad Council’s (SIC) plea against the denial of reserved seats in assemblies for women and minorities. — SC YouTube
A full bench of the Supreme Court on June 24 hears the Sunni Ittehad Council’s (SIC) plea against the denial of reserved seats in assemblies for women and minorities. — SC YouTube
A full bench of the Supreme Court on June 24 hears the Sunni Ittehad Council’s (SIC) plea against the denial of reserved seats in assemblies for women and minorities. — SC YouTube

As the Supreme Court on Monday took up the case of reserved seats, Justice Munib Akhtar observed that the Election Commission of Pakistan (ECP) was “channelising returned candidates of a political party into the category of ‘independents’”.

“Are we going to be so blinded by the harsh political realities […] that if the ECP, on its own cascades of errors, was channelising, shoehorning people who are returned candidates of a political party into a ‘independent’ status […] — are we bound by that or by what mainly is the intent of the paragraph?” Justice Akhtar wondered.

His remarks came as a full court resumed hearing a petition of the Sunni Ittehad Council (SIC) — the new home of PTI-backed candidates — against the denial of reserved seats in assemblies for women and minorities.

A 13-member full court — comprising Justices Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Aminuddin Khan, Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan and Naeem Akhtar Afghan — presided over the hearing.

The proceedings were broadcast live on the SC’s website and its YouTube channel.

The SIC had earlier been joined by PTI-backed independent candidates after they won the Feb 8 elections as their party had been deprived of its electoral symbol ‘bat’ in an SC ruling.

In a 4-1 verdict in March, the ECP had ruled that the SIC was not entitled to claim quota for reserved seats “due to having non-curable legal defects and violation of a mandatory provision of submission of party list for reserved seats”.

The commission had also decided to distribute the seats among other parliamentary parties, with the PML-N and the PPP becoming major beneficiaries with 16 and five additional seats while the Jamiat Ulema-i-Islam—Fazl (JUI-F) was given four. Meanwhile, the verdict was rejected by the PTI as unconstitutional.

Later the same month, while ruling on an SIC plea, the PHC had dismissed an SIC plea challenging the ECP decision and denied it reserved seats.

On May 6, a three-member SC bench, hearing a petition filed by the SIC, suspended the PHC verdict to the extent of reserved seats distributed over and above the initially allocated ones to political parties.

In accordance with the apex court’s ruling, the ECP had then suspended victory notifications of 77 lawmakers, causing the ruling coalition to lose its two-thirds majority in the National Assembly.

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.

In the next hearing, judges had poked holes in the ECP’s decisions as well as in the SC’s January 13 verdict that denied the electoral symbol of ‘bat’ to the PTI.

The CJP had spent a better part of the hearing defending the verdict which was criticised by his colleague Justice Akhtar, who said the PTI lost its poll symbol because of the SC judgment which led to a “cascading series of errors” by the ECP.

CJP Isa wondered why the PTI candidates did not demand the bat symbol independently in each constituency. But Faisal Siddiqui, a senior counsel representing the SIC, contended that demanding the bat symbol would be a clear subversion of the January 13 judgment. Justice Akhtar observed the same.

The counsels from both sides — the SIC and the beneficiary parties (including the PPP and PML-N) — were then given two entire days starting from today’s hearing to sum up their arguments.

On Saturday, in a concise statement furni­shed before the SC thro­ugh senior counsel Sikan­dar Bashir Mohmand, the ECP justified its decision to deny the SIC reserved seats for women and non-Muslims.

It argued that the SIC did not meet the criteria and therefore was not eligible for reserved seats on account of not being a political party within the meaning of Articles 51(6)(d), 56(6)(e) and 106(3)(c) of the Constitution, as well as the election programme’s requirement to furnish a list of priority (Form 66) in a timely manner for the reserved seats.

The ECP also pointed out that article 3 of the SIC’s constitution limited the party’s membership to adult Muslims only, imposing certain restrictions that violated Articles 17 (freedom of association), 20 (freedom to profess religion and to manage religious institutions) and 25 (equality of citizens) of the Constitution.

The hearing

Advocate Siddiqui appeared before the court today and began presenting his arguments.

The SIC counsel asserted that the definition of a “political party” in a relevant provision and its main provision ought to be the same. CJP Isa then stressed that the apex court was concerned with what the Constitution stated rather than how the ECP interpreted it.

Siddiqui highlighted that the main question was: “Can a political party which has not won or secured any seats in the general elections be entitled to reserved seats simply because they secured general seats as a result of independents joining them after the elections?”

He asserted that the words “won” and “secured” were of great importance and the answer to the above lied in how they were interpreted, adding that rather than their “natural meaning”, it was the “intention of the Constitution-maker” that should be ascertained.

Here, Justice Mandokhail wondered if a party that did not bother to contest the elections should be given reserved seats rather than those that did.

To this, Siddiqui replied that the allocation of reserved seats was not dependent on a party’s performance in the general elections but on the “basis of general seats in the assembly].

Justice Minallah, terming the case “exceptional”, noted that the ECP had “confused the entire matter” by declaring that the PTI was no more a political party as its symbol was taken away but “yet they recognised it as an enlisted political party”.

CJP Isa then remarked, “PTI continued to exist [as a political party] after the decision, continues to exist today […] then why did these independents not join PTI? Simple.”

“Didn’t you (PTI) commit suicide yourself?” the chief justice said while addressing Siddiqui, apparently referring to the PTI. “You could have simply said we want to join PTI. End of story.”

He then noted that Siddiqui had a “great conflict of interest”, Justice Isa told him to make up his mind about who he represented — the SIC or the PTI.

Here, Justice Akhtar observed that the PTI-backed candidates “remained throughout candidates of the PTI irrespective of the election symbol”. The judge reiterated the importance of “proportional representation”, according to which each political party must not get more than what it ought to be but must also get its share.

Justice Akhtar noted that the candidates had filed their nomination papers as PTI hopefuls but the “ECP says ‘no, they are independent’. How?” Justice Aminuddin Khan then stated that some of the candidates had submitted their papers as candidates of PTI-Nazriati.

CJP Isa again highlighted that Siddiqui had a conflict of interest, stating that the cases of the PTI and the SIC were not interchangeable. “We are not here to hear ‘how much injustice’ the ECP did. We want to see what the Constitution says.”

He further said that Siddiqui represented the SIC, asking him: “Would you be happy if all these candidates left you? You have to say ‘no’.”

The counsel then said, “Words of the Constitution are sacred but our interpretations are not sacred. Interpretations can be subject to human fallibility.”

Here, Justice Akhtar stressed that the question was about whether the court was bound by the ECP “channelising returned candidates of a political party into the category of ‘independents’” or by the intent of the Constitutional provisions.

Justice Minallah then noted that “serious questions” had been raised about the manner in which elections were held. “The reality is known to everyone. How do we then interpret the Constitution — allow the coercive apparatus to continue and achieve their purposes or so that the people are not disenfranchised.”

The chief justice then recalled that the ECP had “pleaded” before the PTI to hold its intra-party elections yet it did not.

Justice Mandokhail then remarked that Siddiqi was presenting a “very dangerous interpretation”, which would deprive parties that people had voted for and empower the ECP to allocate seats to any newly formed party.

After Siddiqui had concluded his arguments, Asad Jan Durrani, the counsel for KP Assembly Speaker Babar Saleem Swati, came to the rostrum.

Following Durrani’s brief arguments, Advocate Salman Akram Raja — a petitioner who also contested the Feb 8 elections as a PTI-backed candidate — came to the rostrum.

While CJP Isa noted that Raja’s petition was not assigned a number, the advocate was allowed to present his arguments. A 45-minute break was then given in the proceedings at 2pm, after which Raja resumed his arguments, concluding them more than an hour later.

The judges then inquired what other parties were yet to present their arguments, which included the ECP, the PPP and those who were denotified as lawmakers in all assemblies after the SC’s interim order.

The chief justice then stated that the proceedings would not be continued for a third day, ie on Wednesday, and urged all counsels to conclude their arguments tomorrow (Tuesday).

Justice Akhtar sought party-wise breakdown from the counsel representing denotified lawmakers while Justice Afghan directed the ECP lawyer to confirm a few details about SIC chief Hamid Raza’s recent electoral contests.

Noting that Raza had contested the 2024 general elections as an independent after the PTI had listed him in its candidate list and then had joined the SIC, Justice Afghan wondered if it put him in the same category as the PTI-backed candidates. He further asked if the SIC was still a political party because its chief was joining it after contesting the polls as an independent.

CJP Isa told Siddiqui it was upto him whether to have Raza be present during tomorrow’s hearing, clarifying that he was not “directing anyone”.

Subsequently, the hearing was adjourned till 9:30am tomorrow.

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