PTI mishandled reserved seats issue, remark judges

ISLAMABAD:

Judges on the full court remarked on Monday that the Pakistan Tehreek-e-Insaf (PTI) badly mishandled the issue of reserved seats, as they raised questions regarding the constitutional clauses about such seats and the status of political parties if they did not contest the elections.

During a full court hearing of the SIC’s petition for allocation of reserved seats in the national and provincial assemblies, Chief Justice Qazi Faez Isa told the SIC lawyer Faisal Siddiqui that in his view, his (Siddiqui) case would have been stronger “if you had joined PTI after the elections”, adding that if those controlling the SIC changed their mind tomorrow, “you will be left with nothing”.

The full court comprised 13 judges, and also included Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Hasan Azhar Rizvi, Justice Shahid Waheed, Justice Irfan Saadat Khan, and Justice Naeem Akhtar Afghan.

The SIC has sought allocation of the reserved seats by the Election Commission of Pakistan (ECP), after the joining of the PTI-backed independent candidates. The PTI candidates contested elections as independents because the ECP had declined to allocate electoral symbol to the party.

In March, the ECP in a 4-1 verdict ruled that the SIC could not claim reserved seats due to significant legal flaws and failure to submit a mandatory party list for such seats. Consequently, the ECP redistributed these seats among other parliamentary parties.

In the same month, the Peshawar High Court (PHC) dismissed an SIC plea challenging the ECP’s decision. The SIC later challenged the PHC decision in the apex court. After initial hearings by a three-judge bench, the full court convened to hear the case.

During the hearing on Monday, which was live-streamed on the Supreme Court’s website and its YouTube channel, SIC lawyer Faisal Siddiqui and others, including Salman Akram Raja, presented their arguments and responded to several court queries.

Siddiqui, while continuing his arguments, said that the court had to interpret the Constitution in a progressive manner. However, the chief justice told the lawyer why the court should ignore the natural meaning of the Constitution. “Our constitution is progressive,” he added.

Justice Mandokhel said that those who complained about the level-playing field did not approach the court. He asked the lawyer why the reserved seats should be allocated to the SIC, when it did not bother to contest the election.

Justice Minallah said that after the PTI lost its election symbol, it was no longer a political party, but it remained as an unlisted political party. The chief justice asked if the PTI still existed as a political party, why did the independents join another party.

Siddiqui said that on the one hand, the ECP said that an independent candidate could join any political party but on the other, it was of the opinion that joining could only be made with the party present in parliament. He said this interpretation was tantamount to suicide.

Justice Afghan remarked that in the 2018 general elections SIC chief Sahibzada Hamid Raza contested against the PTI and got 5,093 votes, while in the February 8 election, he was listed as a PTI candidate and won as an independent with more than 128,000 votes.

Justice Afghan added that Raza then joined the SIC but it would have to be seen whether he got the votes because of the party certificate and what was his legal status now. Siddiqui said that the basic question was whether a party that did not participate in the election could get reserved seats.

Justice Muneeb Akhtar told the lawyer that saying that the ECP declared PTI candidates as independents because of the Supreme Court decision would be a very dangerous interpretation. He remarked that parliamentary democracy based on political parties.

Chief Justice Isa also said that the court was not bound by the ECP or the lawyer’s interpretation, rather it was bound by the words written in the Constitution. It was possible, he added, the court would agree with the interpretation of the ECP and not with that of the lawyer.

Siddiqui stated that the court had to see not just at the meaning, but also at the intent of the constitutional provisions. The chief justice stated that the court would have to see what the Constitution said and not what the ECP did.

Justice Aminuddin Khan asked whether independent members could establish a new political party. Faisal Siddiqui replied that if those independent members could get a political party registered in three days, then they could definitely join it.

The chief justice asked the lawyer as if he was saying that it was not necessary for a political party to get a seat in the elections and that the reserved seats had nothing to do with not having the electoral symbols. He further asked if PTI was a registered party, then why the independents did not join it.

The SIC lawyer said that the PTI’s election symbol was taken away the night before election, adding that there was no choice for the affected parties. However, the chief justice told him not to talk about politics and just stay with the Constitution.

The Chief Justice asked the lawyer that since he was representing the SIC, what was its election symbol. Siddiqui replied that it was horse. The chief justice then remarked that the electoral symbol of the SIC was not taken away.

The lawyer referred to Justice Shah’s remarks that if 80% of the people become independent, would all the reserved seats be given to the political parties with just 20% seats. The chief justice observed that this was exactly what the Constitution said.

Justice Mandokhel asked if it was supposed that those independent candidates were from the PTI, then where would he stand. The lawyer replied that the SIC would not have any objection to it. On that Justice Aminuddin told the lawyer that he himself washed away his arguments.

Justice Minallah asked what difference did it make whether someone was contesting an election as an independent or a party candidate? Justice Mazhar said that then those candidates would have remained in the PTI and asked for the reserved seats.

The chief justice asked whether the SIC submitted list for the reserved seats. Siddiqui replied that after the election, the ECP was requested to consider the SIC’s list. The chief justice told the lawyer why didn’t he say that there was no list before the election.

Justice Shah raised the question about the reserved seats remaining empty. Siddiqui said that a mechanism had to be found to fill the seats, adding that if there was no clarity in the Constitution, then see the law and court decisions, and also who those independent candidates were.

Justice Afridi pointed out that according to the ECP, the SIC constitution did not allow women and non-Muslim to be its members. Siddiqui replied that the restriction was limited to non-Muslims only, and not the women.

On that the chief justice pointed towards the flag of Pakistan, observing did it not include the rights of minorities. Referring to a speech of Quaid-i-Azam, he asked the lawyer, was it not a violation of the Constitution of Pakistan.

The chief justice asked the lawyer to reply these questions as an officer of court. Faisal Siddiqui replied that he would answer these questions because it was not that simple. However, he added that he would not defend that the PTI and the SIC did not make mistakes.

Justice Rizvi enquired whether the voters objected to the independents joining of the SIC, Siddiqui replied that only the ECP raised the objection. On that Siddiqui concluded his arguments on behalf of the SIC.

The attorney general for Pakistan said in his arguments that according to the Election Act, a person cannot be a member of two political parties. He then referred to Kanwal Shauzab, who, he said, was the president of the PTI Women’s Wing.

The chief justice asked whether Shauzab was the only one, who did not join the SIC, on that lawyer Salman Akram Raja said that she had not been elected in the general elections but could get elected if the reserved seats were given to the SIC.

Justice Shah questioned how could Shauzab come directly to the Supreme Court without approaching other relevant forums. Justice Mandokhel asked if Shauzab was included in the SIC’s list for the reserved seat. Raja said that her name was included in the list.

Justice Ayesha Malik asked the lawyer to show the SIC list. Raja replied that he could not show it from the record because the ECP had not taken the list. Justice Shah told the lawyer that he had everything but no documents.

Justice Minallah said that if a petition related to the elections was heard, all those issues might have been resolved. The chief justice enquired that where was the PTI in the midst of all this. Raja said that Shauzab was from PTI.

Justice Mazhar told Barrister Raja that he had to make the case for the SIC. The chief justice, while addressing Raja, said that he was destroying the case of Siddiqui. Justice Minallah said the PTI should have approached the court. Justice Shah said that he agreed with Justice Minallah in a broader context.

Raja said that he approached the Lahore High Court (LHC) to declare himself as a PTI candidate, but the court said that since the elections were near therefore it could not interfere. He added that the LHC decision was challenged in the Supreme Court but the Registrar’s Office returned the appeal.

The chief justice remarked that if he had accepted the return of the appeal, then the matter was over. He added that if the registrar had any objection, Raja would have challenged it. Justice Shah told Raja that it was the most important matter but he did not file an appeal.

Justice Minallah said in his remarks that instead of going into technical matters, why couldn’t the court use the power under Article 184(3) of the Constitution. At one point Raja said that his arguments were different from Siddiqui, adding that progressive interpretation of the constitution was not needed.

Justice Shah said that Raja was with the PTI in his heart but he was arguing for the SIC. He asked the lawyer as to why 86 people contested elections from one party’s platform and later joined one person. Raja replied that it was being stated at that time that the PTI would be made defunct.

He added that senior lawyers had told them that there was no harm in going to the SIC. On that the chief justice remarked that someone had given them wrong advice. Raja said that it might be the case, but it was a decision.

Justice Afridi said that people had voted for PTI but did they know that the candidates would go to the SIC after winning. He also asked the lawyer whether the PTI general council gave the approval or just the party cabinet decided to join the SIC. Raja said that the decision was taken after consultation.

Siddiqui said that the reserved seats belonged to the SIC and not the PTI. Justice Minallah remarked that 86 representatives were not independent rather they got the votes because of the PTI.

The chief justice raised the query that if the independent candidates remained independent, then what would happen to the reserved seats. Raja replied that certain seats would remain vacant. On that the Chief Justice told the lawyer that he was going against the Constitution.

The court hinted at completing the hearing of the case on Tuesday (today). The court sought details of the nomination papers of SIC chief Raza from the ECP and adjourned the hearing till 9.30 am on Tuesday (today).