ECP also challenges SC's July 12 ruling

Says majority ruling not in accordance with Constitution

ISLAMABAD:

The country's polls oversight authority - the Election Commission of Pakistan (ECP) - has also filed an appeal against the Supreme Court's July 12 ruling in the reserved seats case.

Eight judges of a 13-member full-court on July 12 accepted an appeal filed by the Sunni Ittehad Council (SIC), a party comprising PTI-backed lawmakers, against a Peshawar High Court (PHC) order that upheld an ECP decision not to grant the SIC reserved seats for women and minorities in legislatures.

The brief majority order had not only resurrected the PTI which could not directly participate in the February 8 general elections after being stripped of its election symbol but had also paved the way for its emergence as the largest party in the National Assembly by getting reserved seats.

The majority judges had accepted 39 out of the 80 SIC lawmakers as the PTI members as they had submitted their party affiliation certificates to the ECP ahead of the general election. They had also allowed the remaining 41 lawmakers to join the PTI within 15 days.

Five judges including Chief Justice Qazi Faez Isa, Justice Jamal Khan Mandokhail, Justice Yahya Afridi, Justice Aminuddin Khan and Justice Naeem Akhtar Afghan had disagreed with the majority order.

Two of the judges—Justice Aminuddin Khan and Justice Naeem Akhtar Afghan—on August 3 unveiled their 29-page detailed dissenting note, stating that some provisions of the Constitution need to be suspended in order to allow the PTI get reserved seats in legislature

According to the ECP's appeal, the SC's July 12 order suffered from a lot of errors and was not in accordance with the Constitution, law and the precedents of the court.

It said the SC granted relief to the PTI despite the fact that neither the party, nor persons claiming to be its candidates for reserved seats, nor any independent-returned candidates had approached the ECP, the PHC or the Supreme Court to claim any seat out of the seats reserved for women or non-Muslims.

It claimed that in passing the judgment, the court had presumed certain facts which were not established, or run contrary to, the pleadings and admitted facts on record.

It said that the court seemingly presumed that, of the 80 independent returned candidates, 41 did not remain unaffiliated by their own choice, and that their declaration of non-affiliation was without deliberate action and intention.

Instead the court has granted them an opportunity to remedy the same by retrospectively declaring a party affiliation. "This presumption finds no basis in the pleadings, especially when it is considered that the 39 other independent returned candidates did, in some manner or other, declare a party affiliation."

The ECP said the directions passed in the July 12 judgment have clearly been passed without considering that such directions out-rightly discriminate in favour of a single political party by extending concessions and relaxing certain Articles of the Constitution, laws and rules only to the extent of that single party.

"Even if it is presumed that these Independent returned candidates were in fact affiliated with the PTI, and had joined the SIC only as a strategic move for the benefit of the PTI to gain control of reserved seats that would otherwise be denied to the PTI, the fact that this stratagem did not prove legally sound," it said.