SC suspends PHC verdict denying reserved seats to SIC

ISLAMABAD: The Supreme Court on Monday suspended the order of the Election Commission of Pakistan (ECP) as well as the verdict of the Peshawar High Court (PHC) refusing the Sunni Ittehad Council (SIC) the reserved seats for women and minorities and giving it to other political parties.

A three-member bench of the apex court headed by Justice Syed Mansoor Ali Shah and comprising Justice Muhammad Ali Mazhar and Justice Athar Minallah admitted for regular hearing the appeals of Sunni Itehad Council (SIC) and Speaker Khyber Pakhtunkhwa Assembly against the verdict of Peshawar High Court (PHC) and issued notices to the respondents.

“The impugned judgements of the Election Commission of Pakistan (ECP) and Peshawar High Court are suspended was limited to the allocation of the remaining reserved seats, distributed among three other political parties beyond their proportion in the assemblies, Justice Syed Mansoor Ali Shah noted down in the court’s order after hearing to the counsel of parties in the case. The court held that the votes cast by the members so far and their opinion on the legislation will not be considered suspended adding that the order of this court will not apply retrospectively, but from now as well.

The court further noted that as per the Election Commission notification of April 25, 2024, 82 independent candidates elected to the National Assembly had joined the Sunni Itehad Council (SIC).“Prima facie the political parties in the Parliament who have been given reserved seats beyond their proportional representation is unfair,” the court observed.

Attorney General Mansoor Usman Awan submitted before the court that this is the first case wherein Article 51 of the constitution is required to be interpreted therefore, he pleaded that the matter be referred to a three-member Committee established under the Supreme Court (Practice and Procedure) Act, 2023 for constituting a larger bench. Justice Mansoor Ali Shah, however, said that when leave is granted in an appeal then the verdict is suspended. “We are granting leave to appeal to Sunni Itehad Council and sending the matter to the Committee for constituting a larger bench”, Justice Mansoor Ali Shah held “We will hear the appeal from June 3 on a daily basis as well, Justice Mansoor Ali Shah held.

The Sunni Itehad Council (SIC) as well as the Speaker of Khyber Pakhtunkhwa (KP) had filed appeals in the apex court against the judgment of the Peshawar High Court, praying to allot the party 67 women and 11 minorities seats in the National and Provincial Assemblies, besides praying for setting aside the high court’s verdict. The Election Commission had decided not to allocate reserved seats for women and minorities to the Sunni Ithehad Council which was also upheld by the Peshawar High Court on March 14, after rejecting the petition of the Sunni Itehad Council challenging the order of the electoral body.

During the hearing, Justice Syed Mansoor Ali Shah remarked that they have to protect the spirit of the mandate of the public enshrined in the constitution adding no party matters to them. “We have to look into the matter as per the constitution and the mandate given by the public to whom, we have to protect it as well”, Justice Mansoor Ali Shah remarked adding that the real issue is of public mandate. “It is the scheme of the Constitution that mandate should be respected and it should be reflected in the Parliament as well”, Justice Mansoor Ali Shah further remarked.

At the outset of the hearing, Justice Mansoor Ali Shah raised the question about the formula under which the specific seats are distributed among political parties and whether the political party can take specific seats in proportion to the seats it has won or can even take more. Is it not against the constitutional principle of proportional representation to give a political party more specific seats than the representation in the parliament? The judge observed that reserved seats are given to each party under the constitutional principle of proportional representation, but the Election Commission deprived the Sunni Ittihad Council of reserved seats on the technical objection of not giving a priority list.

Justice Athar Minullah observed that one thing is certain the specific seats are given following the number of seats won, those who succeed in the specific seats are also the people’s representatives. Therefore, giving one party’s mandate to another indirectly deprives the people of their mandate. “A party does not need a common election symbol to contest the election and this was the first time that the largest political party of the country was deprived of its election symbol”, Justice Minallah remarked.

Faisal Siddiqui, counsel for the Sunni Ittehad Council, told the court that no party can get more reserved seats in the parliament than their current representation. “What will happen to the reserved seats of an independent candidate elected who does not join any political party”, Justice Mansoor Ali Shah asked the counsel. Faisal Siddiqui however, replied that the constitution is silent about this but added that the Election Commission’s action of giving additional reserved seats to political parties is against the constitution and parliamentary democracy. “Although JUI has seven general seats in the Khyber Pakhtunkhwa Assembly, but it has been allotted 10 reserved seats”, Faisal Siddiqui told the court adding that the People’s Party was allotted six out of four general seats and eight special seats out of five general seats were given to the to Pakistan Muslim League-N.

Sikandar Bashir Mohamand, counsel for the Election Commission told the court that this issue belongs to the Sunni Ittehad Council and PTI has nothing to do with it. At this stage, Justice Mansoor Ali Shah inquired where was it written in the law that the remaining seats would be redistributed to the political parties, having seats according to their mandate. “We will hear the appeal from June 3 daily as well, Justice Mansoor Ali Shah held. To a query, the court was informed that 23 specific seats are formed in the National Assembly in proportion to the 82 seats of the Sunni Unity Council. But the question is whether these 23 specific seats can be redistributed”, Justice Mansoor Ali Shah asked. On this occasion, Justice Athar Manullah observed that PTI is a registered political party adding that it is written in the law that a registered political party cannot participate in the election without an electoral symbol. At this, counsel for PTI Salman Akram Raja said that he had taken the question to the court. Justice Athar Minullah said that certain seats were distributed among other political parties without giving any reasons and the ECP distributed the seats among other parties which was opposed as well.

The court adjourned the hearing and took a short break summoning the Attorney General and directing him to give his stand on the Election Commission issue. Justice Mansoor Ali Shah said that after the adjournment if any of the opposing sides of the case want to give arguments, they will be heard. After the break, Sikandar Bashir appeared on behalf of the Election Commission and gave arguments.

Justice Mansoor Ali Shah asked the ECP counsel if in the election 200 independent candidates and candidates of six political parties emerged successfully and whether the reserved seats won by 200 independent candidates will be distributed among the six political party candidates. “Yes it will be given to candidates of six political parties”, the ECP counsel replied this is the constitutional position. He submitted that until and unless independent candidates are elected, their seats will be distributed among other parties if they do not join any political party. Look you are representing a constitutional body and you will have to protect the public mandate as enshrined in the constitution,” Justice Athar Minallah told the ECP counsel. Later the court adjourned the hearing and issued notices to the respondents.

Talking to the journalists here along with senior lawyer Salman Akram Raja, Pakistan Tehreek-e-Insaf (PTI) Chairman Barrister Gohar Ali Khan claimed that the coalition government has now lost a two-thirds majority in the Parliament.

Gohar contended that their 78 seats were given to other parties and the government was claiming a two-thirds majority based on these seats. He said that they kept on saying that no political party could get more seats than its won seats and their stand was to let the Supreme Court decide, as ‘we have faith and respect for the judiciary’. He added the apex court’s decision has endorsed their position on the matter.

Barrister Gohar again clarified that they are not holding talks with anyone and that the Supreme Court’s decision has nothing to do with negotiations. He charged that the order of the Election Commission of Pakistan, regarding the allotment of reserved seats was unconstitutional. Referring to reports of the government’s plan to amend the constitution with the tenure of senior judges, he insisted that no judge should be given an extension.

Expressing his views, Salman Akram Raja contended that those who subverted the Constitution, have been defeated today. “The judiciary stands with the constitution of Pakistan and democracy, hopefully, the Supreme Court will decide the remaining cases soon. The constitution and the law will win in this country; we will continue the struggle in the court and will continue the struggle among the people,” he maintained.

Meanwhile, the Supreme Court’s decision was forwarded to the Law Wing of the Election Commission of Pakistan (ECP). It is learnt that a meeting was held under the chairmanship of Chief Election Commissioner Sikandar Sultan Raja, in which the Supreme Court’s decision was discussed. The law wing will review the Supreme Court’s decision in detail and then submit its report to the commission.

In his reaction to the Supreme Court’s order, Federal Minister for Law and Justice Senator Azam Nazeer Tarar said that it would have been more appropriate had a larger bench issued the interim order. He also added that injunctions on parliament’s lawmaking powers should be avoided and that if something affects elected members [of parliament] power to legislate then much more care has to be taken in such a situation.

Hoping that eventually, the final decision of the PHC would prevail, the law minister also pointed out that under Article 67, the authority of a parliamentarian to make laws is not questioned, and the article is clear that even after a member’s ineligibility the legislation remains upheld.