Two judges hold SIC ineligible for reserved seats

ISLAMABAD: As the Supreme Court on Thursday with a majority of 8 decided that the Pakistan Tehreek-e-Insaf (PTI) is eligible for reserved seats in the National and provincial assemblies, Justice Jamal Khan Mandokhail and Justice Yahya Afridi attached their own short orders with the majority judgement.

In his order, Justice Mandokhail held that these matters involve a controversy regarding the allocation of seats reserved for women and non-Muslims. The judge noted that the Sunni Ittahad Council (SIC) did not contest the Feb 8 polls. The SIC, which demands allocation of reserved seats on account of inclusion of independent parliamentarians in it, did not secure a single seat in the National Assembly or any of the provincial assemblies nor submitted a list of its candidates for seats reserved for women and non-Muslims. “Thus, it is not entitled to any of the reserved seats in the National Assembly and in the provincial assemblies,” he held, upholding the ECP judgement and the order of March 1.

Justice Mandokhail noted that under Article 51(3) of the Constitution, the total number of seats in the National Assembly shall be 326, out of which 60 seats are reserved for women and 10 seats for non-Muslims and such right of women and non-Muslims has been guaranteed by the Constitution. “They shall be elected in accordance with the law through proportional representation system of political parties’ list of candidates on the basis of total number of general seats secured by each political party from the province concerned in the National Assembly and the provincial assemblies, as provided by Article 51(6) (d) and (e) of the Constitution,” he noted.

Therefore, the judge held that they cannot be deprived of this right of theirs by leaving these seats vacant, and all reserved seats must be filled in, as provided by Article 224(6) of the Constitution.

He maintained the PHC judgement and the ECP order to the extent of proportional representation distribution of seats amongst the political parties which won and secured seats; however, he held that since the ECP calculated and allocated the seats to the parties by the exclusion of PTI candidates, therefore, to such extent, the PHC judgement and the ECP order are set aside.

Justice Mandokhail noted that during the hearing, it transpired that a number of candidates had submitted their nomination papers declaring on oath that they belonged to the PTI supported by an affiliation certificate of the said party, though some did not submit affiliation certificates of the PTI; however, since they stated on oath that they belonged to the PTI, and did not contradict themselves, they should be considered to be members of the PTI in the National and provincial assemblies. “The ECP by misinterpreting the judgement of this Court dated 13 January 2024, which was regarding non-holding intra-party elections in PTI, wrongly mentioned the said candidates of the PTI as independents in Form 33 of the Election Rules,” he ruled.

The judge, however, held that the ECP had no authority to declare validly nominated candidates of a political party to be independent candidates, adding that a candidate once declared himself/ herself as a candidate of a political party, could not subsequently resile from his/ her candidature of a particular party, after the last date of withdrawal of the nomination papers.

Justice Mandokhail noted that neither the PTI nor any candidate affiliated with it approached either this court before or, during the hearing of these proceedings, the high court to challenge the ECP decision declaring them as independents. The judge noted that the candidates who had submitted their nomination papers declaring that they belonged to the PTI and had not filed a document showing affiliation with another political party before the last date of withdrawal of the nomination papers, should have been treated as the parliamentary party of the PTI, but the needful was not done by the ECP. “Consequently, the PTI as a parliamentary party is entitled to the reserved seats,” Justice Mandokhail held, adding that the ECP should recalculate and reallocate the reserved seats amongst the political parties, including the PTI, as provided by Article 51(6)(d) and (e) of the Constitution.

He noted that the candidates who had submitted their nomination papers by 24 December 2023, which was the last date of submission of nomination papers, and had declared themselves either as independent candidates or had left blank the relevant column in the nomination papers/ declaration and were elected should be considered to be independents. The judge further noted that the SIC is a registered political party and every independent member of the National Assembly and of the provincial assemblies has a right to join it.

Similarly, Justice Yahya Afridi in his separate short order dismissed all the appeals on the grounds that the SIC does not fulfil the conditions prescribed for a political party under the enabling provisions of the Constitution and the law to be allowed/ allocated reserved seats for women and non-Muslims in the National Assembly or provincial assemblies. Justice Afridi, however, held that the PTI fulfils the conditions prescribed for a political party under the enabling provisions of the Constitution and the law to be allowed/ allocated reserved seats for women and non-Muslims, in terms that: i. A candidate for a seat in the National Assembly or the provincial assembly, who in his/ her nomination paper has declared on oath to belong to the PTI and duly submitted a certificate of the same political party confirming that he/ she is the nominated candidate of the PTI for the respective constituency, shall remain so, and cannot be declared independent, unless he/ she submitted a written declaration to the ECP or Returning Officer to be treated as the candidate of another political party or as an independent candidate; ii A returned candidate to the National Assembly or the provincial assembly, who in his/ her nomination paper has declared on oath to belong to the PTI and duly submitted a certificate of the same political party confirming that he/ she is the nominated candidate of PTI for the respective constituency, shall remain so, and this consistent position maintained by a returned candidate throughout the electoral process should be legally recognised by the ECP, and such returned candidate cannot be treated as the returned candidate of another political party or as an independent returned candidate, and thus, the reserved seats for women and non-Muslims are to be allowed/ allocated to PTI, accordingly; iii. A candidate nominated by the PTI for a constituency of the National Assembly or the provincial assembly who, after being declared returned, joined another political party or sought to be treated as independent, raises serious concerns about disregarding the trust reposed in him/ her by the voters, thus undermining the will of the people; and iv. The legal implications, effects and consequences of the determinations made above in paragraphs 2(ii) and 2(iii), as well as the actions or inactions of the ECP thereon, although deeply concerning, have not been challenged in the present appeals and petitions; and the persons who would be affected or aggrieved are not parties before the apex court.

“Therefore, issuing definitive directions to the Election Commission of Pakistan qua the allocation of specific number of reserved seats for women and non-Muslims to a political party in the National Assembly and the Provincial Assemblies would not be legally appropriate,” Justice Afridi held.

Accordingly, Justice Afridi directed the ECP to decide the allocation of reserved seats for women and non-Muslims to political parties in the National Assembly and the provincial assemblies in the light of the determinations made after providing an opportunity of hearing to the parties concerned, and if required revisit its earlier decisions on the matter. The judge directed that the needful be done within seven days of the receipt of this order.