SC suspends PHC's seats allocation order

ISLAMABAD:

Admitting an appeal filed by the Sunni Ittehad Council (SIC), a three-member bench of the Supreme Court on Monday suspended a Peshawar High Court (PHC) order for allocation of additional reserved seats to different political parties in national and provincial legislatures.

The bench led by SC’s senior puisne judge Mansoor Ali Shah and comprising Justice Muhammad Ali Mazhar and Justice Athar Minallah also issued notices to all respondents as it referred the matter to a three-member SC committee for formation of a larger bench.

The Election Commission of Pakistan (ECP) on December 22, 2023 stripped the PTI of its election symbol in view of irregularities in its intra-party elections. The SC later upheld the ECP order and the party had to field its candidates as independents in the February 8 general elections.

Later, the PTI backed independents joined the SIC and applied to the ECP for allocation of seats reserved for women and minorities in the national and provincial legislatures.

The ECP, however, on March 4 dismissed the request, noting that the SIC had not submitted its priority list of candidates for reserved seats prior to the polls. The SIC challenged the order in the PHC which on March 14 upheld the ECP’s decision. The SIC later approached the SC against the order.

In its three-page written order, the SC noted that the question of allocation of reserved seats touch upon the foundational constitutional concept of a parliamentary democracy that the voice of the electorate is truly reflected in the composition of the assemblies.

“Democratic mandate necessitates that the allocation of reserved seats enhances the representativeness of the electorate in the assemblies and upholds the principles of fairness and transparency in the electoral process.

“It is paramount to prioritize the integrity of the elections so that the parliament remains a true reflection of the will of the people,” said the order authored by Justice Shah.

During hearing of the case, Justice Mansoor Ali Shah remarked that the court was only concerned about upholding the Constitution and ensuring that people's mandate is protected.

“The real issue is public mandate, and the scheme of the Constitution is to respect the mandate. We will have to examine whether the PHC order protects public mandate or not.”

Justice Shah also asked as to how reserved seats are distributed among political parties.
“Is it not against the constitutional principles of proportional representation to give a political party more reserved seats? How is it possible to give one party’s mandate to another party?

Justice Shah noted that reserved seats are allocated to every party according to the principles of proportional representation, and technical objections raised by the ECP and upheld by the PHC cannot abolish constitutional principles.

“The ECP initially refused to recognize the SIC as a political party and did not allocate reserved seats to it but later accepted it as a political party and thereby making its earlier decision null and void,” he said.

Justice Athar Minallah also noted that a political party receives as many reserved seats as its representation on the general seats warrants. He said lawmakers elected on reserved seats also represent the people's mandate.

“Giving one party's mandate to another directly deprives the people of their mandate,” he said.

He also noted that a political party does not require a single election symbol to contest elections.

"The PTI is a registered political party. Where in the law is it written that a registered political party cannot participate in elections without an electoral symbol?" he asked.
Referring to the ECP’s December 22 order, he said for the first time, the largest political party in the country was deprived of its election symbol.

Justice Minallah observed that reserved seats were allocated to other political parties without providing a reasonable justification.

The ECP’s lawyer Sikandar Bashir Mohmand argued that the matter pertains to the SIC and not the PTI, which, according to him, is not a parliamentary party.

“So the court's discussion with regard to depriving the PTI of its election symbol [prior to the polls] is irrelevant.”

He said there are two questions before the ECP in this matter, and the primary question is whether the SIC can be given reserved seats or not.

Mohmand said the question of allocation of reserved seats to other parties is the secondary question.

“However, the court has put full emphasis on the secondary question while ignoring the primary question,” he added.

During the hearing, Justice Shah asked the ECP lawyer as to what would happen if 200 independent candidates win elections while only a handful candidates of six political parties also reach an assembly.
Read SIC’s reserved seats plea left hanging by ECP

 

“Will the reserved seats in this case be also allocated to the political parties,” he asked.
The ECP's lawyer replied in the affirmative amid resounding laughter in the courtroom.

The lawyer said people might laugh at his reply but this was what the Constitution said.
“If independent candidates do not join any political party, the seats will be distributed among other parties," he said.

Attorney General for Pakistan (AGP) Mansoor Awan that this was a case of first impression involving questions of constitutional law that have not been addressed by the court earlier.

“This is the first case of its kind, and so far, Article 51 of the Constitution has not been interpreted. It would be better to refer the matter to a larger bench,” he said

When the court suspended the PHC order, the AGP requested that it would be better to leave the matter of the stay order to the larger bench as well.

Justice Mansoor Ali Shah noted that when a stay is granted in any appeal, the decision is suspended. “We are granting a stay in the appeal of the SIC and sending it to the SC committee for forming a larger bench. We will hear the case on a daily basis from June 3,” he said.