Supreme Court stresses on proportional representation for reserved seats

Justice Mansoor Ali Shah says entire issue stemmed from ECP's decision to declare PTI candidates as independent

KARACHI:

Supreme Court's Justice Ayesha Malik on Tuesday emphasized that seats should only be allocated based on proportional representation.

During the hearing regarding the reserved seats for the Sunni Unity Council (SIC), she reiterated that seats cannot be granted except according to the principle of proportional representation.

Chief Justice Qazi Faez Isa presided over a 13-member full court for the proceedings.

The full court comprises 13 judges, and also includes 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 presided over the case.

Today's hearing

At the beginning of the hearing, Faisal Siddiqui, representing the Sunni Ittehad Council (SIC), stated that Sahibzada Hamid Raza had contested the election independently but had mentioned his affiliation with the SIC in the nomination papers.

Referring to the Peshawar High Court's (PHC) decision, Makhdoom Ali Khan explained that the Election Commission of Pakistan (ECP) had declined to allocate specific seats to the SIC, a decision upheld by the PHC.

CJP expressed surprise that Salman Akram Raja and Faisal Siddiqui did not discuss the PHC's decision, focusing only on the Election Commission's ruling.

Justice Athar Minallah noted that Hamid Raza had indicated his commitment to the SIC in his nomination papers. Justice Jamal Mandukhel added that party affiliation required a party ticket.

Makhdoom Ali Khan clarified that Hamid Raza had submitted a letter stating he did not contest the election under any party banner.

Justice Minallah stated that the election symbol does not necessarily indicate party participation.

Justice Ayesha Malik questioned why Hamid Raza was prevented from contesting on a party ticket, suggesting the case could take a different turn if confirmed by the ECP.

Justice Muhammad Ali Mazhar pointed out that although the SIC had an election symbol, no candidate ran under it. Makhdoom Ali Khan noted this was not raised in the appeals.

The chief justice emphasized that judges should only consider points raised in appeals, not create or undermine any party's case.

Makhdoom Ali Khan argued that the SIC, as the petitioner, did not field any candidates or provide a specific seat list.

Justice Minallah stated that if proven, Hamid Raza being a candidate for the Sunni Unity Council would alter the case.

Justice Mandukhel discussed the implications of giving a party certificate and defection rules under Section 63A, adding that Form 33 would clarify party affiliations.

Justice Minallah noted that it was acknowledged that all PTI candidates were declared independent.

Justice Shahid Waheed asked if any candidate had renounced party affiliation after submitting their papers.

Justice Shah highlighted that on March 4, the ECP stated all candidates were independent, questioning the basis for this declaration.

Justice Minallah discussed the current political landscape and its implications.

Justice Muneeb Akhtar questioned how the ECP could declare a candidate independent if they had shown party affiliation and couldn't withdraw it.

CJP Isa stated that PTI is not a party in this case, nor are there any elected representatives involved. He emphasized that the arguments presented before the court will remain unchanged.

He questioned why matters not directly before the court were being discussed, asserting that the merits of ECP decisions, whether good or bad, should not be judged if they have not been legally challenged.

CJP Isa clarified that the court's concern lies solely with the contents of the case file, not external perceptions or pressures.

Justice Mansoor Ali Shah highlighted that the Supreme Court's role, as the highest judicial body, is to safeguard the people's right to vote, especially in rural areas. He raised concerns about how the ECP could unilaterally declare candidates independent.

The chief justice affirmed his judicial oath to uphold the constitution and the law. Justice Athar Manullah stressed the importance of transparent elections as mandated by the constitution, emphasizing that the right to vote is fundamental.

Justice Mandukhel maintained his stance that switching parties under the guise of party affiliation is an invalid concept.

Justice Shah pointed out that the entire issue stemmed from the ECP's decision to declare party candidates as independent, questioning the legitimacy of this fundamental issue.

Justice Ayesha Malik queried the broader implications of whether the SIC wins or loses its case, questioning how other parties would be affected.

She reiterated that seats should only be allocated based on proportional representation and cannot be given outside of this principle. She called on those claiming additional seats to clarify their stance and respect the positions of other parties.

Justice Athar Minallah emphasized that currently, there is a failure to uphold the constitution. “Rather than confronting the reality, we are avoiding it,” he said, observing that many are attempting to give the impression that we are only discussing historical matters.

CJP Isa commented that it is necessary to acknowledge past errors. Justice Minallah asserted that there will come a time when we must acknowledge that we cannot ignore violations of the constitution indefinitely.

Minallah stressed that the Supreme Court's most significant case concerns the February 8 elections, cases involving missing individuals, and breaches of fundamental rights, which are not merely political in nature.

Yesterday's hearing

Judges on the full court remarked that the 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 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.