PESHAWAR: After a larger bench of the Peshawar High Court dismissed petitions of the Sunni Ittehad Council (SIC) challenging the ECP’s decision to deny the party its share of seats reserved for women and non-Muslim lawmakers in the assemblies, PTI said it would take the matter to the Supreme Court.

The bench, which heard arguments for two consecutive days, pronounced a short order on Thursday and rejected the two petitions filed by the SIC — which was joined by the PTI lawmakers to claim their share of reserved seats.

The petitioner had sought directives from the court for the ECP to allocate the reserved seats to the SIC based on their strength in parliament.

It had also challenged Section 104 of the Elections Act which pertains to the mandatory submission of priority lists of candidates by a political party for the reserved seats.

On March 6, the court granted interim relief to the SIC and directed the speaker of the National Asse­mbly not to administer an oath to the eight MNAs-elect on reserved seats from Khyber Pakhtunkhwa.

Keeping in view intricate legal questions in the matter, the PHC chief justice had constituted a special larger bench consisting of five senior most judges, including Justice Ishtiaq Ibrahim, Justice Ijaz Anwar, Justice Syed Muhammad Attique Shah, Justice Shakeel Ahmad and Justice Syed Arshad Ali.

After the decision, PTI Chairman Gohar Ali Khan told reporters outside the Adiala jail in Rawalpindi that the former ruling party would move the Supreme Court to claim its share of reserved seats. Mr Gohar urged the top court to constitute a larger bench to hear the case.

PTI arguments

The petitioner’s lead counsel Barrister Syed Ali Zafar explained the background of the issue, stating that the PTI was denied an election symbol by the ECP and the said order was challenged before the PHC. He stated that the high court had provided relief to the PTI by declaring the ECP’s order as illegal, but the Supreme Court had set aside the high court’s order which resulted in the PTI contesting the general elections without an election symbol.

Mr Zafar contended that for the first time in history, independent candidates had won in such a large number. “To get its share of reserved seats these independents had to join a political party; hence, they joined the SIC in the stipulated period,” he said, adding that 86 MNAs, 90 members in the KP Assembly, 107 in Punjab, nine in Sindh, and one in Balochistan had joined the council.

Mr Zafar contended that under the Constitution and the Elections Act, 2017, the council had to get 26 of the 30 seats reserved for women and non-Muslims in the KP Assembly and eight of the MNA seats from this province.

He added that under Article 106 and Section 104 of the Elections Act, the seats had to be assigned to the SIC, but the ECP allocated these to other political parties, which had acted like ‘qabza (occupier) groups’.

The bench observed that they shouldn’t be referred to as such as the seats were allotted to them by the ECP.

Mr Zafar argued that a party registered with the ECP and having an election symbol would continue to be a political party even if it didn’t contest polls. He added that such a party enjoyed all the rights of a political party guaranteed in Article 17 of the Constitution.

Justice Arshad commented that the only difference between the PTI and the SIC was that unlike the former the latter had an election symbol, but both the parties had not contested elections.

The judge wondered whether while joining the SIC they didn’t know that it had not submitted any priority list of candidates as per requirement of the law.

The bench also inquired that when a political party did not have representation in a house then how could it be assigned the reserved seats merely by joining of independent members?

It was further observed that after the judgement of the apex court in the intra-party election case, the PTI should have re-conducted party polls. Mr Zafar contended that they had held intra-party polls but so far the ECP had not accepted it.

He also cited the example of BAP (Balochistan Awami Party), which was assigned a reserved seat when three independents had joined it after the 2019 provincial assembly polls in former Fata. ECP’s counsel Sikander Bashir Momand pointed out that no documentary evidence was provided regarding the BAP’s case.

An additional advocate general, Mubashir Manzoor, supported the petitioner’s contention and stated that once the independent members joined the SIC it became a parliamentary party.

A day earlier, the attorney general, the ECP’s counsel, and lawyers for the PML-N, PPP, and JUI-F had requested the court to reject the petitions as the SIC had neither contested the general elections nor submitted priority lists of its candidates for the said seats. They had contended that the council was not a parliamentary party and was thus not entitled to the reserved seats.

Published in Dawn, March 15th, 2024