ISLAMABAD: The Supreme Court judges Monday questioned the Sunni Ittehad Council’s (SIC) entitlement to the reserved seats and observed that the Election Commission had failed to fulfil its constitutional duties during the February 8, 2024 general elections.
An 11-member constitutional bench — headed by Justice Aminuddin Khan — heard the review petitions of the Election Commission of Pakistan (ECP), Pakistan Muslim League-Nawaz (PMLN) and Pakistan People’s Party Parliamentarians (PPPP) against July 12, 2024 judgment on the reserved seats for women and minorities in national and provincial assemblies.
The other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Mussarat Hilali, Justice Naeem Akhtar Afghan, Justice Hassan Azhar Rizvi, Justice Muhammad Hashim Khan Kakar, Justice Shahid Bilal Hassan, Justice Aamir Farooq, and Justice Ali Baqar Najafi.
Makhdoom Ali Khan, counsel for the PMLN, prayed for accepting the review petitions against the apex court’s July 12, 2024 judgment in the reserved seats case. Justice Mussarat questioned the eligibility of Sunni Ittehad Council (SIC) for getting the reserved seats.
She emphasized that a party having no representation in parliament could not absorb independents, as they were supposed to join the winning parties. Justice Jamal criticised the role of the Election Commission of Pakistan (ECP) and observed that the electoral body had failed to discharge its constitutional duties.
Justice Mandokhail observed that the presiding officers did not properly furnish Form 33.
“In my opinion, the presiding officers did not discharge their constitutional obligation during the elections and their mistakes cannot be blamed on the public,” the judge remarked.
“The appeal that came before us was a continuation of errors made in the elections and we had penned down in our judgment that nobody could be deprived of their right of franchise,” he added.
Justice Mandokhel further remarked that absence of an election symbol did not dissolve a political party adding, “Parties do not contest elections, candidates do.”
He further observed that the symbols were for public awareness. Makhdoom Ali Khan argued that according to the Sunni Ittehad Council, independent candidates had joined them. Justice Hilali asked whether the SIC had contested the elections.
Makhdoom Ali Khan replied that the party didn’t contest the general elections at all but their chairman contested as an independent.
Justice Jamal remarked that the SIC was not entitled to the reserved seats. While they could become a parliamentary party, but they could not qualify for the reserved seats, he said.
Makhdoom Ali Khan added that the SIC’s appeal had been unanimously dismissed, and the members elected on reserved seats were de-notified without any prior notice.
Justice Mazhar noted that the court had annulled the Election Commission’s notification, which was presented before the court.
Makhdoom argued that if someone was affected by the notification, the court should have issued notices, and that Article 225 of the Constitution, which prohibited challenging elections through means other than an election petition, was not even mentioned in the verdict.
Justice Mandokhel questioned the application off Article 225. Justice Mazhar observed that the matter was about proportional representation and allocation of reserved seats.
Makhdoom Ali Khan pointed out that the lists for reserved seats were submitted to the Election Commission, and any issue with the nomination papers was taken up by the election tribunal.
At this, Justice Mandokhel observed that if Makhdoom’s argument were accepted, then the Peshawar High Court would not have jurisdiction.
Makhdoom Ali Khan responded that the notifications for reserved members hadn’t been issued at that time, and that the courts were obligated to correct decisions that went against the constitution or law.
Justice Mandokhel asked what would happen if majority of judges believed the original decision was correct and the review was unnecessary. Makhdoom said then the review will be dismissed.
Justice Shahid Bilal asked whether PTI was a party to the reserved seat case and whether a non-party could be given seats. Makhdoom Ali Khan submitted that a political party not party to the case could not get seats adding that Justice Yahya Afridi had also written that the PTI was not a party to the case.
Justice Mandokhel commented that the role of the Election Commission was also to be reviewed, as he believed it had not fulfilled its duty.
“The issue was not just about granting seats but also about examining the Election Commission’s conduct,” he said, adding that in his judgment, 39 individuals were declared as the PTI members and awarded seats, and there was no middle-ground formula.
“I have reviewed the available record the whole night, which showed those 39 had written PTI in their party affiliation and certificate columns,” Justice Mandokhel added.
He submitted that the majority decision declared 39 as the PTI members and gave 41 people 15 days to join a political party.
He added that Justice Naeem Akhtar Afghan had noted in his dissent that the Constitution could not be rewritten. The counsel argued that Article 187, which gives the court the power to do complete justice, could not be used to benefit a third party not before the court.
“This is the Supreme Court, not a civil court,” Justice Mandokhel noted. Makhdoom Ali Khan asked should the Supreme Court give relief to the third party in a landlord-tenant dispute under complete justice.
Justice Mandokhel responded that such disputes were private, while the instant case involved the public’s right to vote. Makhdoom Ali Khan cited Justice Afridi’s concern that using the complete justice power could be dangerous.
Justice Mandokhel noted that Chief Justice Yahya Afridi had written that the power should be used cautiously, as it could override the prescribed procedures. He said absence of an election symbol did not dissolve a political party adding, “Parties don’t contest elections, candidates do. Symbols are for public awareness.”
“Had independents remained with the PTI, or had the SIC contested the elections under its own symbol, the issue wouldn’t have arisen,” Justice Mandokhel remarked.
He criticized the presiding officers for not properly filling Form 33 and questioned what Article 185 said about the Supreme Court’s jurisdiction.
Makhdoom replied that the case was an appeal against a High Court decision, and not heard under Article 184(3) (original jurisdiction). Justice Mandokhel stressed that the fundamental issue was how far the court’s complete justice powers extend.
Justice Mussarat said she didn’t understand how the SIC could get seats when it won none, and even its chairman didn’t contest under its banner.
Makhdoom replied that the principle of constitutional loyalty was also applied along with complete justice, although invoking loyalty to the Constitution sounded emotional.
Justice Hasan asked if the PTI had challenged the notifications in Peshawar High Court or with the Election Commission. Makhdoom Ali Khan replied that they did not. He submitted that the majority decision rewrote the Constitution and urged the court to accept the review petitions, as it had the power to change its opinion.
Justice Mandokhel asked whether he could change his own verdict in the reserved seats case to which Makhdoom replied that he absolutely could.
Justice Hilali remarked that a “Pathan has one word,” to which Makhdoom replied that while the word may be one, opinions can change.
Meanwhile, after Makhdoom Ali Khan concluded his arguments, counsel for the Election Commission told the court that they had submitted their written arguments. The PMLN counsel also confirmed submission. Likewise, PPP’s counsel told the court that they would submit their written arguments on Tuesday (today).
