The Supreme Court on Monday suspended the Peshawar High Court’s (PHC) verdict denying the Sunni Ittehad Council (SIC) — the new home for PTI lawmakers-elect — reserved seats for women and minorities.
The development came as a three-member bench — headed by Justice Mansoor Ali Shah and including Justice Muhammad Ali Mazhar and Justice Athar Minallah — took up an SIC appeal against the PHC order.
The Supreme Court on Monday took up a petition filed by the Sunni Ittehad Council (SIC) — the new home for PTI lawmakers-elect — against the denial of reserved seats for women and minorities.
The SIC had earlier been joined by PTI-backed independent candidates after they won the Feb 8 elections as their party had been deprived of its electoral symbol ‘bat’.
In a 4-1 verdict in March, the Election Commission of Pakistan (ECP) had ruled that the SIC was not entitled to claim quota for reserved seats “due to having non curable legal defects and violation of a mandatory provision of submission of party list for reserved seats”.
The commission had also decided to distribute the seats among other parliamentary parties, with the PML-N and the PPP becoming major beneficiaries with 16 and five additional seats while the Jamiat Ulema-i-Islam Fazl was given four. Meanwhile, the verdict was rejected by the PTI as unconstitutional.
Later the same month, while ruling on an SIC plea, the PHC had dismissed an SIC plea challenging the ECP decision and denied it reserved seats.
In April, the SIC filed a petition before the SC — moved by party chief Sahibzada Hamid Raza — seeking to set aside the PHC judgment.
Lawyer Faisal Siddiqi appeared before the court today as the SIC counsel, while Attorney General of Pakistan (AGP) Mansoor Usman Awan and an ECP official were also summoned during the hearing.
Accepting the SIC appeal for hearing, the apex court clarified that the PHC order upholding the ECP decision was suspended to the extent of the remaining reserved seats given to other parties.
According to the written order, a copy of which is available with Dawn.com, questions regarding allocation of reserved seats touched upon the “foundational constitutional concept of a parliamentary democracy that the voice of the electorate is truly reflected in the composition of the assemblies”.
It added that a democratic mandate necessitated that the allocation of reserved seats enhanced the representativeness of the electorate in the assemblies and upheld the principles of fairness and transparency in the electoral process.
“It is paramount to prioritise the integrity of the elections so that the Parliament remains a true reflection of the will of the people.”
Thus, it said leave was being granted to consider the questions raised by the parties and said the appeals would be heard on June 6. It added that both sides were free to file additional documents.
The order said that notices be issued to the advocate general of Pakistan and the provincial advocate generals.
Suspending the PHC and ECP verdicts, the order said it applied only to the reserved seats allocated over and above the initially allocated reserved seats to the political parties.
“Since the questions under consideration require constitutional interpretation, the matter be placed before the committee under Section 4 of the Supreme Court (Practice and Procedure) Act, 2023 for constitution of a larger bench to hear the appeals,” the order reads.
The hearing
At the outset of the hearing, Siddiqi came to the rostrum to present his arguments and informed the court that PTI-backed independent candidates who had won the general elections had joined the SIC.
At one point, when Justice Minallah asked if the PTI was a “registered [political] party”, the lawyer replied in the affirmative.
Here, Justice Shah observed, “It is a registered political party [but] just did not take part in the elections.”
“Within how many days must independent candidates join a party?” Justice Mazhar asked, to which Siddiqi replied that such MNAs-elect have to join a party within three days of the notification of their success.
Justice Minallah then asked, “If a political party does not have an electoral symbol, will its candidates lose their right to represent [their party]?”
The counsel responded: “A political party can become a parliamentary party after contesting the [general] elections. Another situation is that a political party does not take part in elections but winning independent lawmakers join that party.”
Here, Justice Shah asked under what formula reserved seats were distributed among political parties. “Would a political party get reserved seats according to the seats it has won or can it also get more [than its share]?” he asked.
Siddiqi answered, “Any political party, under any circumstances, cannot get more than its share of reserved seats.”
Justice Minallah observed that a political party could only get reserved seats according to the number of general seats it had won.
“Where is it written in the law that the remaining [reserved] seats should be distributed among the same political parties?” Justice Shah asked.
“We have to protect the public mandate. The real issue is of the public mandate,” he observed.
Justice Minallah then asked, “Where is it written in the law that a political party cannot contest elections upon not receiving an electoral symbol?”
Advocate Salman Akram Raja, who contested the Feb 8 polls as a PTI-backed independent, recalled that the same question had been asked in a court before the elections.
“One thing is decided — a party would only get reserved seats according to the representation it has [in the assemblies],” Justice Minallah remarked.
“How is it possible that someone’s mandate is handed over to someone else?” Justice Shah wondered.
This led to the court summoning the ECP officials.
When the hearing resumed after a short break, the AGP and the ECP director general (law) appeared before the court.
Justice Shah asked if distributed seats could be reallocated. “The second question is that the reserved seats were distributed so the House is complete. Where is the mistake in this?”
AGP Awan then said that no candidate had joined a political party.
“Can seats belonging to the independent candidates be distributed among other parties?” Justice Shah wondered. “The Constitution of Pakistan also begins in this manner that affairs will be performed according to public aspirations,” he observed.
The judge went on to ask if the reserved seats could be “redistributed in the second stage” while Justice Minallah asked what should be done if any further reserved seats were left unallocated.
Here, Justice Shah, while noting that political parties could get their deserved share of reserved seats, again asked how they could also be allocated other seats.
“Can other remaining reserved seats also be distributed to them? Is there anything like that in the law?” he asked.
“If there is nothing as such in the law, then isn’t doing so against the Constitutional scheme?” Justice Shah asked AGP Awan.
Here, Justice Mazhar asked whether the ECP had not given the unallocated reserved seats to other political parties under its suo motu powers.
“What cannot be done directly cannot be done indirectly either,” Justice Minallah remarked. “Is it right to ignore a political party’s mandate in an indirect manner?” he asked.
The ECP law DG contended before the court that a political party was defined as a party that had contested elections on an electoral symbol, adding that it must be registered.
Here, Justice Minallah noted that the ECP allocated the reserved seats to other political parties “without giving any reasonable explanation”.
Upon the ECP official seeking a few more seconds to complete his arguments, Justice Minallah quipped that the court was ready to give him hours.
“We are accepting the case for hearing,” Justice Shah said, adding that the apex court was also suspending the earlier ECP and PHC decisions.
However, the judge highlighted that the verdicts’ suspension was limited to the allocation of the remaining reserved seats, which had been distributed among three other political parties.
