Reserved seats can’t be given outside proportional representation: SC

ISLAMABAD: The Supreme Court on Tuesday observed that reserved seats could not be given outside the principle of proportional representation.

A 13-member larger bench of the apex court Waheed, Justice Irfan Saadat Khan, and Justice Naeem Akhtar Afghan.

The proceedings of the case was telecasted live at Supreme Court’s YouTube channel.

The court adjourned until Thursday the hearing while Sikandar Bashir Mohmand, counsel for Election Commission of Pakistan (ECP) was still on his legs arguing in the matter. On Thursday he will continue his arguments and later counsels for Pakistan Muslim League-Nawaz, Pakistan People’s Party, Jamiat Ulelma-e-Pakistan (JUIP) and others will also argue as well.

During the course of hearing, Justice Athar Minallah questioned as to what was the situation when independent candidates of Pakistan Tehreek-e-Insaf (PTI) had to apply for ticket of PTI (Nazriati).

Chief Justice Qazi Faez Isa, however, observed that debate should be avoided on the matter which was not before the apex court.

Justice Athar Minallah, however, observed that the Election Commission of Pakistan (ECP) had wrongly interpreted the judgement of the apex court on the matter of PTI election symbol.

“Why should the people face the consequences of wrong interpretation made by the electoral body,” Justice Minallah questioned.

Justice Munib Akhtar during the hearing asked the ECP counsel as to whether the Supreme Court in its judgement on election symbol case has ousted the PTI from the election.

ECP counsel Sikandar Bashir Mohmand apologised if the judgement had been interpreted like that.

The CJP, however, replied that if the SC judgement is to be cited then it should be read as well.

“It is not a decision but a law requiring a political party to ensure intra-party election,” the CJP remarked, adding that if intra-party elections are not held today, they can be held tomorrow.

Therefore, one has to read the judgement in detail while mentioning it,” he remarked, adding that for how long this case would be heard as we have lots of other cases to be adjudicated upon.

At the start of hearing, SIC counsel Faisal Siddiqui told the court that the nomination papers show that Chairman Sahibzada Hamid Raza is associated with the Sunni Ittehad Council.

He said that even in the Jamiat Ulama-e-Islam-Fazl, minorities are not given membership, on which the chief justice said that he was speaking pointlessly, asking him to present documents.

The counsel said he would submit the documents, and the ECP would also confirm that.

Justice Munib inquired whether the party ticket was submitted along with the nomination papers? The counsel replied that Hamid Raza was being prevented from submitting the party certificate, adding that the ECP had forcibly allotted the symbol of an independent candidate.

He submitted that the records of the nomination papers were sought from the ECP.

Meanwhile, Makhdoom Ali Khan, counsel for the elected members on reserved seats, submitted that the election schedule was issued under the Election Act, adding that the date of the list of reserved seats was released by December 24.

Justice Mansoor asked when was the notification issued to recognise the SIC as a parliamentary party? Makhdoom Ali Khan said that the ECP could better answer that. He submitted that when the court issued an injunction, the membership of the elected members on the additional reserved seats was suspended.

He told the court that the list has to be submitted for the seats, no candidate from the SIC participated in the elections, due to which the list of women is not available and has not been submitted, adding that the submitted list could not be changed.

He submitted that the five-member bench of the Peshawar High Court had given a decision against the SIC in both the cases.

The SIC told the ECP that independent candidates have joined, citing various sections of the Election Act, saying that the reserved seats depend on the general seats won, the counsel submitted.

Justice Athar Manullah observed that the court was told that Hamid Raza had shown commitment to the SIC in the nomination papers.

“If this is true then the Sunni Ittehad Council will have a general seat in the Parliament,” Justice Minallah remarked.

Justice Mandokhail said that it was necessary to have a party ticket for affiliation, on which Makhdoom Ali Khan said that currently Hamid Raza’s letter is on record that he had not contested any election on the SIC symbol.

Justice Minallah, however, observed that the electoral symbol is not related to the party’s participation in the elections.

Justice Mandokhail observed that it will be clear from Form 33 who belongs to which party. Justice Athar Minallah observed that it is an accepted fact that all PTI candidates had been declared independent.

Justice Mansoor observed that on March 4, the ECP itself stated that all the candidates were independent.

“On what basis did the Election Commission declare the candidates of the political party as independent,” Justice Mansoor questioned.

Justice Minallah said that what was happening in the country was a bitter reality.

Justice Munib said that if a candidate could not withdraw after showing party affiliation, how could the ECP declare him independent?

Justice Isa, however, observed that the PTI was not a party in the case nor was there any elected representative, adding that the case before the court was that of the SIC to be given reserved seats.

“The decisions of the Commission could be good or bad, how can you call the decision good or bad if it has not been challenged,” the CJP questioned.

“What does the world know, we have nothing to do with it, judges decide on what is on record and not in the knowledge of the world,” the CJP remarked.

Justice Mansoor observed that being the highest court, it was the Supreme Court duty to defend the right of the people to vote, and the main question was that how could the ECP automatically declare someone independent.

Justice Minallah observed that if the Constitution is to be defended, transparent elections are necessary according to the Constitution, adding that voting is a fundamental right.

Justice Mansoor said that millions of people have voted, therefore, it is important to protect their right, adding that the whole matter started by declaring the candidates of the political party as independent.

“How is it possible to leave this basic question,” he remarked.

Justice Ayesha observed that reserved seats could be found only on the principle of proportional representation, adding that the seats could not be given outside the principle of proportional representation.

Makhdom Ali Khan submitted that the matter of proportional representation needed to be looked in the context of general seats, won by any political party.

“Therefore, the concept of proportional system have to be looked into,” the counsel submitted.

Justice Afridi asked as to whether reserved seats could remain vacant to which Makhdom Ali Khan replied that certain seats could not remain vacant, on which Justice Munib said that if a member resigns or dies, whether the Parliament would cease to function.

Similarly, the chief justice questioned as to if a judge retires, would the Supreme Court stop working for a while?

“If there is no member or the seat is vacant, by-elections will be held,” the CJP remarked.

Justice Minallah observed that the SIC was treated as a political party. “We totally ignored the fundamental rights of the voters today as we witnessed in 2018 elections as well.”

He continued that the proportional representation comes from general seats won by any political party adding that Article 187 of the Constitution provides complete justice.

Justice Minallah further observed that the apex court had on various occasions exercised its original powers provided under Article 184(3) of the Constitution but today we are ignoring to exercise this power and this court will again regret for not doing so.

“Can we convert Article 187 into Article 184(3) of the Constitution,” Justice Mazhar asked the counsel. Makhdom Ali Khan, however, submitted that he would not go for that.

“This is not the matter to be taken under 184(3) jurisdiction,” Makhdom contended, adding that you must put the statute and uphold the provisions of the Constitution.

He submitted that the source for getting reserved seats was contesting the elections, adding that there was a criteria for the applicants seeking reserved seats as well as the same was for the political parties.

The counsel contended that the SIC did not provide list for getting reserved seats, adding that every political party is required to provide the list for the purpose before the polls.

“If political party does not provide list for reserved seats for women and minorities, can it be left vacant in Parliament,” Makhdoom questioned.

Meanwhile, ECP counsel Sikandar Bashir Mohmand, while arguing before the court, submitted that he had filed a concise statement in the court.

He submitted that the ECP under Article 224 and Section 52 of the Election Act 2017 asked the legislature to elect the representatives and public notices were issued for filing nomination papers to general as well as reserved seats.

The counsel also gave an overview of the whole process including Form 33 for general and reserved seats, while the Returning Officers were directed to scrutinise the nomination papers.

Justice Mandokhail asked as to whether the ECP would decide about the affiliation of a candidate to a particular political party, to which the counsel submitted that Form 66 is a list given by political parties regarding reserved seats, adding that the procedure of general and reserved seats list was the same.

The ECP lawyer submitted that reserved seats for women and minority seats were as important as the general seats.

Justice Mansoor inquired whether it was possible that there were two candidates from the same party from the same constituency?

The ECP counsel replied that was not possible.

“You mean that the Supreme Court excluded Tehreek-e-Insaf from the elections by the decision of bat symbol,” Justice Munib Akhtar asked the counsel.

The ECP counsel replied that it was not like that.

The counsel submitted that even a political party based on 100 percent independent candidates is not a political party under the Election Act.

Justice Minallah inquired if a listed party could be de-listed.

Justice Mandokhail said that a political party would remain a political party anyway. “Yes but it will not remain as political party for the purpose of Article 51 of the Constitution.”

Justice Mazhar asked the ECP counsel as to whether in the nomination papers of PTI candidates, the tickets were of PTI-Nazriati or Tehreek-e-Insaf?

The ECP counsel replied that no it was not of PTI but PTI-Nazriati.

Justice Munib said that if a candidate withdraws the certificate of PTI-Nazriati and then submits the certificate of Tehreek-e-Insaf, would you be satisfied as the symbol is given only by the political party.

The counsel replied that the condition is that if the symbol is given then they would be called candidates of Tehreek-e-Insaf, if the sign is not allotted then they would not be called PTI candidates.

He said that the PTI certificate had not been seen with any candidate, adding that the ECP should decide about that, on which Justice Minallah said: “You are representing a constitutional body whose job is to conduct elections.”

The judge added that press conferences have been seen by the whole world, did the ECP also observed why these press conferences were held? Whether it was not the responsibility of the Election Commission to see the reason for the press conferences?

The counsel replied that he would not answer questions based on assumptions. “I do not know why those press conferences were held,” the counsel added.

Justice Ayesha said: “You are saying that no certificate came from Tehreek-e-Insaf and the reason was the decision of the Election Commission.”

“How will they join the Tehreek-e-Insaf certificate in the light of the decision of the Election Commission,” Justice Ayesha asked to which the counsel said that it was it was not ECP decision, adding that the PTI had not filed the certificate.

Justice Afridi asked as to whether the SIC had submitted list for the reserved seats to which the counsel replied in negative.

During the hearing, the counsel made an ECP official to read the documents in Urdu language and said that Hamid Raza had written in the documents that he was from SIC and in the bracket mentioned alliance with the PTI.

The chief justice asked the counsel that in the Election Act, there are laws for elections and rules of alliance as well. The counsel replied that in Election Act, different political parties can make alliance, adding that Hamid Raza wrote in a letter to the ECP that if these candidates do not get symbol of bat then symbol of shuttlecock be given.

At this Justice Munib inquired why did he not ask the candidates that you are from the SIC but giving certificate of PTI? You should have given give the certificate of Sunni Ittehad.

At this the ECP counsel replied that Hamid Raza himself was the SIC chairman.

Justice Munib said that they were the candidates of the PTI but they did not get the symbol of ‘bat’.

The chief justice said that Supreme Court’s decision was related to non-conduct of intra-party elections, it could have ramifications.

“Democracy must be talked about but not intra-party elections, it is not our job to decide who elects whom, there were 91 posts in Tehreek-e-Insaf, all of them remained unelected,” the CJP remarked, adding that Imran Khan as prime minister wrote to Election Commission asking to give one year for the intra-party election.

“Now they have become enemies of the Election Commission”, the CJP said, adding that even in the Supreme Court we have brought democracy under the Supreme Court (Practice and Procedure) Act 2023.

Justice Minallah said that no one was questioning the legal status of the decision. Whether the ECP had told them that if there is no symbol of ‘bat’ then how all the candidates be able to contest the elections on one symbol.

The counsel submitted that all procedures are completed before the election’s day and then the voter casts his vote.

Later, the court adjourned the hearing until Thursday (tomorrow) at 11:30 am.