ECP rightly denied SIC reserved seats, JUIF tells SC

ISLAMABAD: Jamiat Ulema-e-Islam-Fazl (JUIF) Monday told the Supreme Court that the Election Commission of Pakistan (ECP) was right in denying the Sunni Ittehad Council (SIC) reserved seats for women and minorities in the National and provincial assemblies.

A 13-member Full Court headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa heard the SIC appeal challenging the verdict of Peshawar High Court (PHC). Other members of the bench were 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 proceedings of the case was telecasted live at Supreme Court’s YouTube channel. During the hearing, ECP counsel Sikandar Bashir Mohmand, while concluding his arguments told the court that the Pakistan Tehreek-e-Insaf (PTI) issued party affiliation and Form 66, signed by its Chairman Gohar Ali Khan on December 22 and January 13 but before that it could held intra-party elections.

They should have submitted it with the nomination papers which they did not, the counsel submitted, adding that the ECP decided the matter on December 23 and later on the PHC gave its verdict on SIC matter.

He submitted that in the nomination papers, Hamid Raza had shown his affiliation with the SIC. Whether he was required to give certificate of the SIC or an independent candidate, Justice Mandokhail asked the counsel.

The counsel replied that he was required to submit certificate of the SIC. He further submitted that the ECP announced its decision on December 22, the PHC gave its decision on January 10, while the Supreme Court’s decision came on January 13.

The PTI informed the ECP on February 8 about its intra-party elections, the ECP counsel said, adding that had they informed on February 7 then something could have been done The chief justice observed that the issue of PTI intra-party elections was in progress for many years and it had frequently been asking for time as well, and it’s an admitted fact that despite getting one year time, it could not ensure those elections.

Being a prime minister, Imran Khan had filed an application seeking one year time for intra-party elections, the CJP said Meanwhile, the ECP counsel, while referring to PTI Women Wing President Kanwal Shozeb, said that she didn’t have a locus standi for filing the petition in court as she had never contested election but had anticipated for being one of the candidates for the reserved seats.

Justice Athar Minallah observed that as per the ECP, the PTI did not hold intra-party elections that resulted it into its disqualification; however, the judge observed the Supreme Court in its January 13 verdict did not ask for disqualification of any party.

“The ECP did not fulfil its obligation and disqualified the PTI,” Justice Minallah remarked. During the hearing, Khyber Pakhtunkhwa Advocate General Shah Faisal Utmanzai told the court that the in 2018 elections, the Balochistan Awami Party (BAP) neither contested elections nor provided list for reserved seats but the ECP gave them reserved seats.

He questioned then why the ECP did not adopted that formula in 2024 elections and deprived the SIC of reserved seats. At this the ECP counsel said that at that time, the composition of the ECP was different, and the second reason for that was the merger of Fata areas with the KP

Justice Mandokhail asked the KP advocate general as to why the provincial government did not challenge it in a court of law. The chief justice observed that if that was the issue then the issues of Senate Elections held in 2018 would also come to the surface.

During the hearing, Justice Mandokhail asked Barrister Gohar Ali Khan that on last hearing he was asked as to whether the PTI had submitted before the ECP its declaration and certificates (tickets) and he had replied in affirmative.

But now as per record of the ECP the party certificates and declaration were available in nomination forms and some were missing. Barrister Gohar replied that he had submitted two forms one was for the PTI and other for independent candidates, adding that the ECP brought only one form and it should be asked to bring the other form as well.

Justice Mansoor asked that elections was to be contended on one seat then why he submitted two forms. Gohar replied that on candidate can file four nomination papers. adding that it also included nomination papers for covering candidate, adding that he had filed the papers on December 22 by 4 pm but the ECP gave its decision at 9 pm.

Gohar claimed that the ECP had not provided the court sufficient documents. Meanwhile, during the course of hearing JUIF counsel Kamran Murtaza appeared before the court and submitted that they adopt the ECP arguments.

Do you think the Election Commission had done the right job, Justice Mandokhail asked the counsel. Yes, the JUIF counsel replied. “Is it correct that in your party manifesto, there is no concept of minorities,” the CJP asked Kamran Murtaza. The counsel replied in negative, adding that it was misprinted.

A representative of Pakistan Peoples Party came to rostrum and informed that Farooq H Naek could not reach the court. While Shahzad Shaukat, Supreme Court Bar Association president and counsel for one of the respondents, also told the court to adopt the arguments of Makhdoom Ali Khan who had argued before the court on behalf of the respondents whose oaths were suspended by the ECP.

Attorney General Mansoor Usman Awan, while arguing before the court, gave overall view of Article 51 (d) )e) of the Constitution saying the purpose was to indicate one objective creating reserved seats for women and minorities, and to empowering them to represent in Parliament.

He submitted that political parties, after securing votes in general elections, were entitled for reserved seats completing the Parliament, adding that it was mandatory that the seats have to be completed.

“The purpose of the Constitution cannot be accomplished without completing the seats of Parliament,” the AG submitted, adding that the formula set for getting one reserved seat is on the basis of general seats secured by any political party.

He submitted that the formula is being adopted since 2002 when women were given representation in the National and provincial assemblies, adding that now election for reserved seats are held through direct vote on the basis of general seats secured by a political party.

Justice Ayesha asked the AG as to whether the formula had been in progress since 2002 and whether the said formula was not yet changed even with the changing of relevant laws. Justice Minallah observed that another dispute was also propped up when the ECP ousted a political party from the election process.

“Had the ECP not disfranchised a political party, this issue would not have emerged,” he further remarked. The AG contended that the Constitution required that all the seats of the assemblies would have to be filled.

Justice Minallah again remarked that initially, the ECP determined the SIC reserved seats but later on denied that. The attorney general replied that the SIC status was not clear at that time.

Justice Minallah said that the electoral body had allotted the reserved seats considering the SIC a political party. Justice Ayesha observed that the Constitution does not talk that the seats of independents candidates be reduced at the time of determination of the seats.

The AG contended that independents are required to join a political party within three days after winning the elections and upon their failure, they would be considered as independents. Justice Mansoor observed that still the status of independents is not less than anyone and they can join any political party.

Chief Justice Isa, however, asked as to what was the difficulty when interpretation of Article 51 had been made for many days. When and how the Constitution was farmed, the court is not to change it, and he will have to go by the pattern set by the Constitution, he remarked.

The CJP said that the ECP is an independent and constitutional body meant for organising elections hence no action can be taken against it unless a case is filed before this court based on concrete evidence.

“In every election, nobody says that elections were held in transparent manner and the losers always complain about the ECP,” the CJP remarked. “But the court wants that whichever party has a right it should be given, and one party should not be given seats beyond its proportional representation,” Justice Mansoor remarked.

“What is the right, the Supreme Court has to go by the Constitution as well,” the chief justice remarked. Justice Isa said that if any unconstitutional thing had been done, the Supreme Court will completely blow it up. “Tell me if the ECP has done any unconstitutional thing,” he asked.

Later, the court sought from the ECP, the formula adopted for allotting reserved seats, to political parties during the general elections held in 2018 and 2024 and adjourned the hearing for today (Tuesday) at 11: 30 am.