SC questions ECP’s role in disenfranchising PTI

ISLAMABAD: Supreme Court’s senior judge Justice Syed Mansoor Ali Shah Thursday questioned the Election Commission’s role in the Feb 8 general election and asked how it could disfranchise a political party.

This observation from the senior judge came as a 13-member full court, headed by Chief Justice of Pakistan Qazi Faez Isa, resumed hearing on the appeals of Sunni Ittehad Council (SIC) and Khyber Pakhtunkhwa Assembly Speaker challenging the Peshawar High Court verdict, denying the party reserved seats for women and minorities in the national and provincial assemblies.

The proceedings were telecast live on the Supreme Court’s YouTube channel. Sikandar Bashir Mohmand, the counsel for Election Commission of Pakistan (ECP), continued his arguments.

Justice Mansoor, Justice Jamal, Justice Athar and Justice Munib questioned the Election Commission’s role in declaring the PTI-backed candidates as independents. Justice Athar asked the counsel if it could be assumed that the electoral body had ousted the PTI from the election process by wrongly interpreting the Supreme Court’s verdict on the PTI’s election symbol. “The bench is saying that the ECP had misinterpreted the Supreme Court’s decision on the election symbol,” Justice Athar Minallah remarked.

Justice Amin-ud-Din Khan, however, observed that they were hearing an appeal against the Peshawar High Court’s judgment and the matter of election symbol was not before them. “Despite this, 90 percent arguments are being given on the matter of election symbol,” he added. “That’s what I am saying, as the high court had upheld our order,” the ECP counsel replied.

Justice Mansoor observed that they were not bound by the verdict of five-member judges of Peshawar High Court but to look into the real issue. “The main question is how the Election Commission could disfranchise a political party,” asked Justice Mansoor, adding when the ECP decided that the PTI would no more be a political party if it did not get the election symbol. “Show us the record of ECP meetings” Justice Shah asked the ECP counsel to which he replied in the affirmative. He further asked the counsel if the ECP was merely excluded as a political party from the election process because it did not have the election symbol.

Justice Mandokhel asked the counsel which law and provision of the Constitution authorised the Election Commission to declare a candidate as independent. “There is a pact of affiliation between a candidate and a political party; show us any law and provision of the Constitution to justify the ECP action of declaring the PTI-backed candidates as independents,” Justice Jamal asked the counsel.

“It means that the ECP misinterpreted the Supreme Court judgment and the major political party was excluded from the electoral process,” said Justice Athar Minallah. “The bench that denied the election symbol was telling you that you have wrongly interpreted its judgment and it did not allow you to exclude a political party from the election process,” Justice Minallah added.

At this, the ECP counsel replied that there were only observations of the court adding that the review petition against the SC judgment was still pending with the court.

Justice Yahya Afridi asked the ECP counsel to leave the 80 candidates and focus on six of them including Barrister Gohar Khan and others who had submitted their declarations and certificates to the ECP about a particular party but they were also declared by the electoral body as independents. Justice Afridi asked the counsel to provide on the next date of hearing the declarations and certificates submitted by the six candidates. “It seems to me that you have watched the drama of William Shakespeare,” Justice Mansoor Ali Shah told the ECP counsel in a lighter tone.

Responding to Justice Ayesha A Malik, ECP’s Sikandar Bashir Mohmand submitted that some of the candidates had withdrawn their nomination papers and showed themselves as independent candidates. “It is not my case that the independent candidates had joined the Sunni Ittehad Council but the case of Sunni Ittehad Council as well,” the ECP counsel submitted, saying it was for the court to look into the facts narrated by the petitioner (SIC) in its appeal.

“But it is a fact as per law that the independents were required to join a particular party within three days after winning the elections,” the counsel contended. “If an independent candidate joins any party on the fourth day, then there is no reserved seat for him, and this is the plain reading of articles of the Constitution as well as a section of the Election Act 2017 and it’s a bitter pill to swallow,” the ECP counsel submitted.

Justice Munib reminded the ECP counsel that the independent candidates did not show themselves as independents but it was the Election Commission that declared them independents. “They contested the election and then wanted to join a party but the Election Commission asked how could they join a party,” Justice Munib remarked. When a candidate is willing to join his party, the ECP is making a mockery of him, he further observed.

The chief justice observed that some facts were clear for which he was not required to speak but there’s a dispute in the documents submitted by the Election Commission to the court.

Earlier, the ECP counsel read out certain sections of the Election Act 2017 as well as the constitutional provisions in support of his arguments. Justice Muhammad Ali Mazhar asked the counsel what he would do with the vacant reserved seats and whether they could be distributed among other parties. The counsel replied that he would extensively argue on this matter. “Please give me some space,” the ECP counsel replied.

The chief justice asked the ECP counsel how much time he would need to conclude his arguments … one minute or two. The counsel, however, replied that he would require more time to finish his arguments. The chief justice asked the counsel to provide the details of declarations and certificates submitted by the PTI to ECP besides providing it to the other counsel. PTI counsel Salman Akram Raja told the court that the party had filed a CMA with the apex court to become a party to the instant case. Later, the court adjourned the hearing until next Monday at 11:30 am.