Verdict on reserved seats: ECP hangs fire as SC reiterates its position

ISLAMABAD: The Election Commission of Pakistan (ECP) Friday again could not take a final decision on the reserved seats and decided to continue deliberations.

ECP sources said the commission met here with Chief Election Commissioner Sikandar Sultan Raja in the chair.

Commission members, other senior officials and legal team attended the meeting.

“The Election Commission is a constitutional body and believes in strict compliance with the Constitution and the law; therefore, there should be no ambiguity that a decision on reserved seats will be made accordingly,” a senior ECP official said.

Meanwhile, the Election Commission has reacted to the statement of Pakistan Tehreek-e-Insaf (PTI) senior leader Senator Hamid Khan, who had a chat with the media.

The spokesperson for the Election Commission said an elder and a Member of Parliament used an indecent language against the chief election commissioner and the commission members.

The spokesperson said the Commission will not be deterred by such threats and tactics and that the Election Commission does not consider it appropriate to respond in the same language.

The spokesperson said the commission will continue to make decisions according to the constitution and law.

Senator Hamid Khan along with former president of the Supreme Court Bar Association Abid Zuberi had said in a conversation with the media here that they will not tolerate any violation of the Supreme Court order. “We will follow you to the grave. The chief election commissioner and the members should listen that we will not spare them on violation of the SC order,” he said.

In a related development, the eight-member majority judges of the Supreme Court in the reserved seats case Friday held that the amendments made to the Elections Act could not undo its judgment with retrospective effect, and the Election Commission of Pakistan (ECP) was bound to implement the judgment in letter and spirit.

In response to Civil Miscellaneous Applications (CMAs) filed by the ECP and the Pakistan Tehreek-e-Insaf (PTI) seeking clarification, the eight judges issued clarification in Chambers at Islamabad and Karachi. The judges are Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Irfan Saadat Khan.

They held that the judgment has binding effect in terms of Article 189 of the Constitution, and should have been implemented.

“Since the Commission and PTI both have asked for a second clarification, we want to simply clarify and reiterate the well-settled exposition of law that the effect of the amendment made in the Elections Act cannot undo our judgment with retrospective effect,” the judges held.

They clarified that the court granted the relief in the short order to enforce the right of the electorate through political parties to have proportional representation in the reserved seats under paragraphs (d) and (e) of clause (6) of Article 51 and paragraph (c) of clause (3) of Article 106 of the Constitution.

“Therefore, the amendments made in the Elections Act after the release of our Short Order will have no bearing and the Commission is bound to implement the judgment passed by the Supreme Court of Pakistan, in its letter and spirit, without seeking any further clarification,” the judges held.

The eight judges directed the office to send the clarification to the ECP and the PTI representative, and also upload it on the Supreme Court website.

They judges disposed of both the CMAs accordingly.

The judges noted that in terms of paragraph 10 of the July 12, 2024, short order passed in the civil appeals No 333 and 334 of 2024, both the ECP, through CMA 10247/2024, and PTI), through CMA 10088/2024, seek clarification regarding the effect of the Elections (Second Amendment) Act 2024 on the short order.

Similarly, they held that the ECP in its CMA, had submitted that the July 12 order was based on the law which has since been altered by the amendments made to Sections 66 and 104 of the Elections Act 2017 and a new Section, 104-A, has also been inserted with retrospective effect from the date of the commencement of the Elections Act.

On the other hand, the PTI had submitted in its CMA that the short order was based on the interpretation and enforcement of constitutional provisions, therefore the amendments could not supplant the effect of the short order, said the clarification.

The eight judges further held that they had already issued clarification before releasing the detailed reasons and the first clarification was also merged in their detailed reasons.

“The option given by us to seek clarification in the Short Order was in fact an intermediary window till the detailed reasons were assigned, so in case there arises any misunderstanding as to the spirit or implementation of the Short Order before the release of the detailed judgment, the parties may seek clarification,” they noted.

They further clarified that detailed reasons have already been released and all legal and constitutional issues raised and argued by the parties have been dealt with eloquently and answered; therefore, no further clarification is required to be issued.

It is pertinent to mention here that on July 12, a 13-member Full Court of the apex court had held that the PTI was, and is a political party, which secured or won general seats in the National and provincial assemblies in the general elections of 2024 thus entitled for reserved seats, declaring unconstitutional and unlawful, the ECP decision of allocating reserved seats to the ruling coalition.

The court had announced judgment in the appeals filed by Sunni Ittehad Council (SIC) against the judgment of the Peshawar High Court, denying the party reserved seats for women and minorities in the assemblies.

The court by a majority of 8-5 had set aside the PHC judgment of March 25 and declared the ECP order of March 01 to be ultra vires the Constitution, without lawful authority and of no legal effect.

Those judges who gave the majority judgment comprising Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Irfan Saadat Khan.

Justice Aminuddin Khan and Justice Naeem Akhtar Afghan, however, dismissed the SIC appeal and upheld the PHC decision.

Similarly Justice Jamal Khan Mandokhail and Justice Yahya Afridi have appended their separate short orders. Chief Justice Qazi Faez Isa, Justice Syed Mansoor Ali Shah and Justice Munib Akhtar agreed with the short order of Justice Mandokhail.