As the Supreme Court on Monday took up the case of reserved seats, Justice Munib Akhtar highlighted a “cascading series of errors of law” committed by the Election Commission of Pakistan (ECP) that “forced” PTI-backed candidates to take on the garb of independents.
“All of these returned candidates were PTI candidates forced by cascading series of errors of law by the ECP to take on the garb of independents,” Justice Akhtar observed.
He added that the matter of reserved seats boiled down to whether they were to be “denied those reserved seats simply because now they have taken shelter under” the Sunni Ittehad Council (SIC).
His remarks came as the full court resumed hearing the SIC’s plea against the denial of reserved seats in assemblies for women and minorities.
On Tuesday, the 13-member full court – comprising Justices Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Aminuddin Khan, Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan and Naeem Akhtar Afghan – resumed hearing the case.
The proceedings were broadcast live on the SC’s website and its YouTube channel.
Advocate Faisal Siddiqi, representing SIC’s female candidates who were denied the reserved seats, resumed his arguments in the case. The hearing was then adjourned to 9:30am on June 24, with Justice Shah stating that the counsels of both sides would have two entire days to sum up their arguments in the case.
At the outset of the hearing, Siddiqi informed the court that the SIC did not contest the general elections as a party this year, and therefore, did not file a list of candidates for reserved seats.
CJP Isa asked Siddiqi if the Constitution made a distinction between a political party and a parliamentary party, to which the latter replied that Article 63A mentioned so.
Justice Isa then asked who the head of the SIC was, remarking that a “lot will flow from that”. Siddiqi responded that he did not have a name but would specify later, adding that in his opinion, the answer was irrelevant to the case in focus.
Justice Mandokhail remarked that a parliamentary party “legally was not bound to follow the decisions of its chief”.
Noting that Article 51A of the Constitution mentioned political party and not parliamentary, Justice Akhtar said the focus should be whether the SIC was a political party or not.
He observed that a candidate was independent “only if he declared in the nomination paper ‘I do not belong to any political party'”.
Recalling that the PTI-backed candidates went through the scrutiny process and were elected in the February 8 polls, the judge asserted that “all of those persons were PTI returned candidates”.
“How can rule-making power of the ECP […] go against parent statute?” he asked. To this, CJP Isa responded that then the candidates would be of the PTI rather than independents, and hence could not join the SIC. However, Justice Ayesha said that since the ECP had allowed them to contest, they had then joined a political party (the SIC) as independents.
Here, Justice Akhtar highlighted there was an “intervening event that was the denial of the electoral symbol” to the PTI, adding that the “only possible course was to allocate a symbol not allocated to other parties”. While Justice Minallah noted that a political party could contest elections as a political party even without a symbol, Justice Akhtar pointed out a “series of cascading series of errors of law” in the ECP’s actions.
The chief justice then asked Siddiqi why the affected candidates did not seek the ‘bat’ symbol as their electoral symbol after the PTI was denied the same. At this, Justice Akhtar remarked that that would have been in violation of court orders.
Here, Justice Rizvi recalled that the PTI wanted the ‘batsman’ symbol – belonging to PTI-Nazriati – asking “what happened with them then”.
CJP Isa then, referring to the Jan 13 order, asked Siddiqi if the judgment stated that “individuals cannot have the [bat] symbol”. At this, Justice Akhtar asked whether the order needed to say so. The SIC counsel replied in the negative to both questions. Justice Akhtar opined that the “only conclusion is that the election bat symbol is off the book, no one can get it. Full stop. Not in this general election”. Justice Mazhar – one of the three judges on the bench that restored an ECP order, leading to the PTI losing its symbol – emphasised that the court had stated that the party could approach it again on the issue of reserved seats. The top judge then remarked that when someone was stated as a PTI candidate “but then joined your party (SIC) then you are not coming as independents but after rejecting that party (PTI)”. Here, Justice Minallah stressed: “We need to consider the voters’ rights as well […] challenges were faced by one political party – it was complaining of a coercive apparatus of the state in operation and it has not happened for the first time. The hearing was subsequently adjourned to June 24.
