PHC stops oath-taking on reserved seats

Refers PTI plea against ECP’s March 5 order to CJ for formation of a larger bench

The provincial high court of Khyber Pakhtunkhwa (KP) has halted candidates of various political parties, who were allocated additional reserved seats in the National Assembly on the order of the Election Commission of Pakistan (ECP), from taking oath until today (Thursday).

A division bench of the Peshawar High Court (PHC), comprising Justice Ishtiaq Ibrahim and Justice Shakeel Ahmad, issued this order on Wednesday while hearing a constitutional petition filed by the PTI.

The ECP, on Monday, declined to allocate reserved seats to the Sunni Ittehad Council (SIC)—which comprises PTI-backed lawmakers—because it had not submitted a “priority list” for these seats prior to the February 8 general elections.

In its written order, the ECP stated that the SIC was not entitled to claim quotas for reserved seats for women and non-Muslims “due to non-curable legal defects and violation of the mandatory provision of submission of a priority list for reserved seats, which is a requirement of the law.”

The polls oversight authority noted that reserved seats in the National Assembly shall not remain vacant and will be allocated through proportional representation to other political parties.

The PTI subsequently approached the PHC against the order. In its petition, the PTI argued that the ECP allocated its reserved seats to other parties in violation of Article 51(6) of the Constitution, read with Section 104 of the Elections Act, 2017, and Rules 92 and 94 of the Election Rules, 2017.

During the hearing on Wednesday, Justice Ibrahim inquired whether this case is limited to the K-P or extends to the entire country. The PTI’s lawyer, Qazi Anwar, stated that the ECP made a uniform decision on seats in the National Assembly and provincial assemblies.

“Our reserved seats cannot be constitutionally or legally divided among other parties. We request the court to prevent those who will take oath on those reserved seats,” he said.

Read: PTI moves PHC for reserve seats

Justice Shakeel Ahmad asked the lawyer whether he argued that if the seats could not be allotted to the SIC due to non-submission of the priority list, they cannot be allotted to other parties as well as they also had not submitted lists for those seats earlier.

After the arguments, the bench issued a stay order on the swearing-in of new lawmakers on the reserved seats until today, while sending notices to the ECP and other parties. It also issued notices to the attorney-general for Pakistan and the KP advocate general for assistance.

The bench referred the case to the PHC chief justice for the formation of a larger bench to review six legal questions. The bench noted that a larger bench will have to determine whether the PHC has jurisdiction to adjudicate the matter and if the petitioner (PTI) has locus standi to file the petition.

“[The larger bench will have to determine] whether the petitioner is entitled to claim the quota for reserved seats for women and non-Muslims in view of the express provisions of Article 51(6) of the Constitution, read with Section 104 of the Elections Act, 2017, and Rules 92 and 94 of the Election Rules, 2017.

“[It will also have to determine] whether the defect of non-submission of a list for the seats reserved for women and non-Muslims by a political party is not curable under the law?

It noted that the PHC will also have to determine whether the reserved seats can be kept vacant or are liable to be allocated through proportional representation to other political parties based on the general seats won by these political parties.

“[The larger bench will also have to decide] whether the ECP has misconceived and misinterpreted the provisions of Article 51(6) of the Constitution, read with Section 104 of the Elections Act, 2017, and Rules 92 and 94 of the Election Rules, 2017,” it said.

Earlier, speaking to reporters outside Rawalpindi’s Adiala Jail, PTI Chairman Gohar Ali Khan said the party will also approach the Sindh High Court (SHC) against the ECP’s March 5 order.

“We hope that the courts will decide the matter according to the Constitution and relevant laws. Today, we had consultations with the PTI founder, Imran Khan, in jail. It has been decided that Omar Ayub will be the leader of the opposition in the National Assembly,” he said.