SC questions ECP’s credibility in SIC seat dispute

ISLAMABAD: Justice Munib Akhtar on Tuesday raised questions over the credibility of election commission, asking how the electoral body could deprive the Sunni Ittehad Council (SIC) of its reserved seats in the National and provincial assemblies after accepting it as a parliamentary party.

A 13-member full court, headed by Chief Justice Qazi Faez Isa, heard the appeal of the Sunni Ittehad Council (SIC) challenging the verdict of Peshawar High Court (PHC) denying the party reserved seats for women and minorities in the National and provincial assemblies.

Other members of the bench are 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 this case were telecast live on the Supreme Court’s YouTube channel.

The court adjourned the hearing until next Tuesday at 11:30am after Attorney General Mansoor Usman Awan concluded his arguments.

Faisal Siddiqi, counsel for the Sunni Ittehad Council (SIC), and Salman Akram Raja, counsel for the Pakistan Tehreek-e-Insaf (PTI), told the court they could conclude their respective rebuttals in 20 minutes.

However, Chief Justice Qazi Faez Isa informed them that they had to leave for a meeting of the Judicial Commission of Pakistan, hence adjourning the hearing until next Tuesday.

Earlier, Attorney General Mansoor Usman, while continuing his arguments, submitted that in the 2002 assembly, out of 272 seats in the National Assembly, there were 14 independent candidates, adding that the share was worked out by excluding these 14 independent candidates, bringing the strength of the assembly to 256.

At that time, the AG submitted, the 17th Amendment was passed excluding independents, and not a single political party had objected to the exclusion of independents.

In the Balochistan Assembly, the AG submitted, there were 49 seats, out of which 11 were independents. After the exclusion of these 11 independents, the provincial assembly came to 38 seats. “All over, the independents were excluded, ensuring the proportional representation system to the political parties,” the AG submitted.

He informed the court that there were 272 full seats in 2018, with 134 independent candidates elected. Nine of them later joined political parties, which is a constitutional requirement that they must join any party within three days after being elected to parliament.

“The Constitution demands that no seats can be left vacant,” the AG submitted.

Justice Syed Mansoor Ali Shah observed that in the past, the matter of independents never came to court, but this time the volume of independents was high and a case had come to the court.

Justice Munib Akhtar observed that the foundation of parliamentary system is based on political parties, but here the question arises as to where the high strength of independents came from.

“Whether the people themselves elected them independents or the election commission, and if it was done so, this court should correct the mistake by opting for those legal options,” Justice Munib Akhtar questioned.

Chief Justice Qazi Faez Isa, however, asked whether any party had said that these seats would remain vacant, adding that every party says that it should be given to it. “Why are we spending time on the matter which is not before the court?” the CJP questioned.

The attorney-general, however, reminded the court that Faisal Siddiqui, counsel for the Sunni Ittehad Council, had said that if these reserved seats were not given to the SIC, they should be left vacant.

“I have repeated many times what is written in the Constitution, and if something is not available in the Constitution, it should be left for the framers of Constitution,” the CJP remarked.

The attorney general submitted that a parliamentary party must have won seats in the elections.

Justice Syed Mansoor Ali Shah, however, observed that this example is irrelevant as the matter relates to before elections. “Where is it written in the Constitution about the establishment of a parliamentary party?” Justice Shah asked.

The AG replied that it was only mentioned in Article 63-A; therefore, for its application, a parliamentary party should be there. He submitted that independent candidates cannot join a parliamentary party, as it was mandatory for that party to have won a single seat in the elections.

Justice Mansoor Ali Shah asked the attorney general if the election commission had accepted the Sunni Ittehad Council as a parliamentary party. “It is not in my knowledge,” the AG replied but added that an independent candidate cannot join a party that is not a parliamentary party.

During the hearing, Faisal Siddiqui, counsel for the Sunni Ittehad Council, produced before the court the notification of Zartaj Gul, who was notified as a parliamentary party leader, by the National Assembly Secretariat. He submitted that the election commission on April 25 had issued the notification on the joining of independent candidates as well as party positions.

He further submitted that the ECP in its reply had also admitted that the independents have joined the Sunni Ittehad Council.

“Now a new angle of thought has come to surface from this document whereby the electoral body is accepting the joining of independent candidates into the Sunni Ittehad Council,” Justice Munib Akhtar remarked, adding that after taking the oath, the matter inside parliament was being looked after by the speaker of the National Assembly.

“Is this not an open contradiction that the ECP was not once accepting Sunni Ittehad even as a political party?” Justice Munib Akhtar asked the AG.

The chief justice, however, questioned the notification, asking how the letter written by a deputy registrar of the Supreme Court could be accepted as the apex court’s stance.

But Justice Munib Akhtar inquired how the official communication could be ignored. He questioned how the election commission could deprive the Sunni Ittehad Council of its reserved seats when it had accepted the SIC as a parliamentary party and intimated it to the parliament as well.

“Elections will determine who will be the parliamentary party. If there are independent candidates, they can join the parliamentary party,” Attorney General Mansoor Awan said.

Justice Jamal Khan Mandokhel asked under what law the election commission issued both notifications.

The chief justice asked the AG to tell the court what the legal status of the election commission’s notification was.

The attorney general submitted that the election commission’s notification had no status according to Article 63-A of the Constitution, but it was for the party to look into the matter as well.

Justice Munib Akhtar, however, observed that it is the National Assembly that should tell the electoral body that the assembly has been formed, but here the election commission is telling the National Assembly according to its records.

“According to you, under Article 51, the Sunni Ittehad Council is not a political party but has become a parliamentary party after winning the by-election?” Justice Yahya Afridi asked the attorney general.

The attorney general submitted that if the Sunni Ittehad wins the by-elections, it could become a parliamentary party.

Justice Athar Minallah remarked that now it has been established that the election commission had misinterpreted the judgment of the Supreme Court and questioned if the court should validate the unconstitutional interpretation made by the electoral body. “Do you want us to revive the doctrine of necessity?” Justice Athar Minallah asked the attorney general.

Chief Justice Qazi Faez Isa, however, observed that the court applies the Constitution and law, not the requirements of justice, adding that in all the judgments of necessity, the requirements of justice are mentioned. “Let Pakistan go on the path of Constitution,” the CJP remarked.

But Justice Athar Minallah again questioned if this court should validate the worst violation of the Constitution and ignore the elephant in the room.

Justice Irfan Saadat Khan asked the attorney general what would happen if an independent candidate did not join a political party after winning the elections, adding that as per the Constitution, he has to join any political party within three days.

The AG replied that the independents will remain independent if they do not join any political party. Later, the court adjourned the hearing until next Tuesday.