The people who voted for candidates backed by the Pakistan Tehreek-e-Insaf (PTI) voted for the party and not independents, observed Justice Jamal Khan Mandokhail on Monday as a 13-member bench of the Supreme Court commenced proceedings into the Sunni Ittehad Council (SIC)’s petition against a Peshawar High Court (PHC) ruling denying it reserved seats for women and minorities.
Apart from Justice Musarrat Hilali, who is on medical leave, the bench comprises all 13 judges of the Supreme Court. Chaired by Chief Justice of Pakistan (CJP) Qazi Faez Isa, it includes Justices Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Aminuddin Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan and Naeem Akhtar Afghan.
The Pakistan Muslim League-Nawaz (PMLN), Pakistan Peoples Party (PPP) and Jamiat Ulema-e-Islam Fazl (JUIF) have opposed the SIC petition, as they are the ultimate beneficiaries of the reserved seats granted to the PTI-backed party.
In the first day of proceedings, advocate Faisal Siddiqui represented the SIC, while the advocate general represented the Government of Khyber-Pakhtunkhwa. At the outset, Siddiqui said there were two different petitions before the court, while the advocate-general noted a contempt of court petition was in the field against his government for not following the PHC’s order.
Summarizing the facts of the case, Siddiqui said there were 77 disputed seats—22 in the National Assembly and 55 in the provincial assemblies.
He argued the allocation of reserved seats to parties in excess of their proportion was in violation of Articles 51(vi)(d) and (e) of the Constitution and read out a letter from the Election Commission of Pakistan (ECP) recognizing the SIC as a parliamentary party. This, he argued, indicated it was eligible for reserved seats.
To a query from CJP Isa, the ECP counsel said there were 23 disputed seats in the National Assembly.
The lawyer then noted that candidates had joined the SIC within three days of their victory notifications, as per law. “Thinking of it, it is decided from before when the nomination papers are submitted … that which candidate is from what party,” observed Justice Mandokhail and questioned whether the people who joined the SIC had received any party affiliation certificate during the nomination process. Justice Minallah reiterated the same question, with Siddiqi replying in the affirmative.
Justice Mandokhail then questioned how they were considered independent candidates, with the SIC counsel saying the ECP had told them they could not contest polls as PTI candidates. “Then the question arises whether the ECP can declare someone nominated by the party and who also wishes to contest as that party’s candidate as an independent,” remarked Justice Mandokhail. “And secondly, does that candidate have the right that once they submit the papers, they quit that party?” he added.
To questions from the CJP over whether the ECP considered the SIC a political party, the counsel said the ECP had “recognized the party and there was no dispute on it.” Justice Mandokhail then questioned if the PTI’s candidates had contested the general elections.
Siddiqi then summarized all the court verdicts that had led to the PTI losing its electoral symbol, with Justice Mandokhail questioning whether the PTI maintained its status as a political party after losing its symbol. He also asked whether the PTI lost “other rights accorded to it under the election laws” or if it could still issue certificates to candidates. “It was presented as if the party has been demolished and democracy’s funeral was held; do they speak the truth?” he questioned.
Justice Minallah then asked if the PTI remained an enlisted party of the ECP, adding Justice Mandokhail’s question was answered when Siddiqi replied in the affirmative. Justice Akhtar noted that the basic question in front of the bench was that of proportionality. “The Constitution has given two distinct commands—do not give anything more but do not deprive the other,” he observed.
Justice Mandokhail then asked if it should not be ascertained that the “PTI was constitutionally valid and had fielded its candidates?” to which Siddiqi replied in the positive. At multiple times, the CJP attempted to discourage the SIC counsel from addressing questions raised by multiple judges, urging him to argue the matter and wait to respond to questions until the end.
Justice Minallah then asked if the ECP could “assume the role as an adversarial to a political party or it has to ensure that each political party gets it right so that no one is disenfranchised.” He also observed that the ECP should have “corrected” any mistakes done by the SIC to protect the people’s vote.
“If that is the case, then the seats will go to the PTI, not the SIC,” remarked Justice Mandokhail, adding the people voted for the PTI and not any “independent” candidate.
The court then adjourned the hearing till 11:30 a.m. tomorrow (Tuesday).