Constitution's supremacy, democracy on trial next week

ISLAMABAD:

The upcoming week is poised to have a significant bearing on constitutional supremacy and democracy in the country as the Supreme Court tackles high-stakes matters.

A three-judge bench, headed by Justice Syed Mansoor Ali Shah and including Justice Muhammad Ali Mazhar and Justice Athar Minallah, is set to convene on May 6 to address a petition filed by the Sunni Ittehad Council (SIC).

The petition challenges a decision by the Peshawar High Court (PHC) which rejected six petitions seeking the allocation of reserved seats in both the national and provincial assemblies. Advocate Faisal Siddiqi is representing the petitioner in court.

Notably, the Pakistan Tehreek-e-Insaf (PTI) leadership has shifted its strategy, opting to engage a professional lawyer for this case. Previously, it had relied on party lawyers, some of whom held critical views regarding Chief Justice of Pakistan (CJP) Qazi Faez Isa.

Following the engagement of professional lawyer CJP Isa refrained from assigning the matter to his bench. Instead, the case has been listed before a bench led by the senior-most judge, Justice Shah, who previously authored the order granting bail to former prime minister Imran Khan in the cypher case.

The case holds particular importance for Justice Shah, who is slated to serve as the next CJP for over three years.

Besides, the outcome regarding reserved seats carries substantial implications for both the government and PTI/SIC.

Moreover, any prospective constitutional amendments by the government hinge on the ultimate resolution of the reserved seats issue.

Currently, discussions are also underway regarding a constitutional amendment aimed at judicial reforms.

Advocate Abdul Moiz Jaferii said that the ongoing hearing of the case is of utmost importance.

"The government has shown its hand about wanting to tamper with the constitution without having any legitimacy to do so.

This case has the possibility of nipping it all in the bud. It goes to the core of deciding the consequences of the January 13 decision by the Qazi court,” he reckoned.

Jaferii further stated that that case can arrest the outcomes that may ensue.

It's worth noting that the five-judge larger bench of the Peshawar High Court (PHC) adjudicated this matter.

Now, it remains to be seen whether the three-judge bench of the apex court will handle the case or refer it to the CJP to constitute a larger bench.

SIC requests suspension of PHC order

Meanwhile, Faisal Siddiqi has petitioned the apex court to halt the decision of the Peshawar High Court (PHC).

Similarly, the plea also seeks a directive for the Election Commission of Pakistan (ECP) to suspend the memberships of National and provincial assembly members who were allocated seats based on the ECP’s order dated March 1, 2024, while the present petition is pending.

The application contends that PHC's judgement is based on a fundamental misconception and misinterpretation of Article 51 as well as Article 106 of the Constitution, 1973.

It asserts that the central basis of the proportional representation system's allocation of reserved seats for women and non-Muslims, as outlined in Article 51(6)(d)(e) and Article 106(3)(c) of the Constitution, 1973, does not hinge on the political party's submission of candidate lists for reserved seats before the general election or whether said party participated in the election.

Instead, the fundamental constitutional basis for the entitlement to reserved seats under the proportional representation system is the 'total number of general seats secured by each political party from the province concerned in the National Assembly' or the 'total number of general seats secured by each political party in the provincial assembly'.

"In other words, the fact whether the political party, which now has general seats in the Assemblies, had fought the election or not, is not a constitutional requirement for the allocation of reserved seats under proportional representation system.”

The petition underlined that this was further recognised by the proviso to Article 51(6)(d)(e) and to Article 106(3)(c) of the Constitution, 1973, which states that independent returned candidates shall be considered to be part of the total number of general seats of a political party.

Secondly, it argued, there was nothing in Article 51(6)(d)(e) of the Constitution, 1973, which required that the political party which has general seats in the NA, due to independent returned candidates joining it, should have necessarily contested the election and also won some seats.

“Contrary to this, the proviso’s to Article 51(6)(d)(e) of the Constitution, 1973, legally converts the independent retuned candidates as seats won by even a party which has not contested the general election. Thirdly, the other requirements i.e., selected in accordance with law as well as the submission of list of candidates, as mentioned in the aforementioned Article 51 and Article 106 have to be read in harmony with the aforementioned two principles and cannot override the aforementioned principles,” the petition read.

Furthermore, the petition argued that there was nothing in the aforementioned Article 51 as well as Article 106 which required the list of candidates for reserved seats to be submitted before any general election.

Thus, the interpretation of Article 51 as well as Article 106 as contained in the Impugned Judgment and the above-mentioned ECP dated: 01-03-2024, is a clear misinterpretation of the said constitutional articles. “Therefore, the impugned judgment is erroneous and liable to be set aside.”

The application stated that it was a settled principle of interpretation of constitutional provisions dealing with elections as well as election laws that no interpretation should be given which is anti-democratic, thus, political parties securing seats more than their electoral representation would be inherently undemocratic.

The application said that the petitioners have a prima facie case, the balance of convenience is in favour of the petitioner and irreparable loss will be caused to the petitioners unless this present application is granted.

Meanwhile, a three-judge bench headed by CJP Isa will address the issue concerning the enforcement of the Faizabad Dharna judgment. The panel is scheduled to review the inquiry commission report for the first time on May 6.

Additionally, the broader bench will convene to hear a suo motu case concerning a letter from six IHC judges alleging interference by agencies in judicial functions.