• Supreme Court says paramount to prioritise integrity of elections; refers case to committee for larger bench formation
• Lawyer claims constitutional amendment cannot be adopted after interim order
• Law minister says court should ‘desist’ from interfering in legislative domain of parliament

ISLAMABAD: The Supreme Court on Monday suspended the March 14 Peshawar High Court (PHC) judgement as well as the March 1 Election Commission of Pakistan’s decision to deprive the Sunni Ittehad Council (SIC) of seats reserved for women and minorities.

Headed by Justice Syed Mansoor Ali Shah, a three-judge SC bench, however, explained that Monday’s interim order relates to the disputed seats only, i.e. the reserved seats allocated over and above the initially allocated reserved seats to the political parties. It is also clarified that this order is to operate prospectively, w.e.f., from Monday.

“The question of allocation of reserved seats in the national and provincial assemblies touches upon the foundational constitutional concept of a parliamentary democracy that the voice of the electorate is truly reflected in the composition of the assemblies,” said the order dictated by Justice Syed Mansoor Ali Shah.

Democratic mandate necessitates that the allocation of reserved seats enhances the representativeness of the electorate in the assemblies and upholds the principles of fairness and transparency in the electoral process. It is paramount to prioritise the integrity of the elections so that parliament remains a true reflection of the will of the people, the order said.

“Now no constitutional amendment of any kind can be adopted by parliament after the interim order,” said senior counsel Salman Akram Raja, who contested the Feb 8 polls as a PTI-backed candidate, soon after the court proceedings.

The Supreme Court had taken up a set of appeals against the PHC order, which was moved by SIC Chairman Sahibzada Hamid Raza through senior counsel Faisal Siddiqui. The Khyber Pakhtunkhwa Assembly speaker had also approached the Supreme Court.

The SIC was earlier joined by PTI-backed independent candidates after they won the Feb 8 elections, since Imran Khan’s party had been deprived of its electoral symbol ‘bat.’

Earlier, in a four-one verdict, the ECP had ruled that 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.

Larger bench

On Monday, the Supreme Court also ordered placing the present petitions before the three-judge committee that determines the constitution of the bench for the reconstitution of a larger bench when Attorney General for Pakistan (AGP) Mansoor Usman Awan highlighted that under Section 4 of the Supreme Court (Practice and Procedure) Act 2023, the present case should be heard by a larger bench since the issue concerns the interpretation of constitutional provisions.

While granting leave to the petitions, the Supreme Court said it would again take up the matter on June 3 and conclude the matter after daily hearings without granting any adjournment.

Law Minister Azam Nazeer Tarar was the first to react by stating the Supreme Court should desist from issuing suspension orders by interfering in the legislative domain of parliament.

Courts always exercise extra caution on matters when it amounts to curtailing the rights of the elected members to legislate, the minister said, adding that Article 67 was loud and clear in holding that any legislation done by the member remains in the field even if the law had defects.

No question can be raised on the qualification of the member to legislation under Article 67 of the Constitution, he said.

Since the matter involved the interpretation of Article 51(6)(d) and Article 106 of the Constitution which deals with the allocation of reserved seats in the national and provincial assemblies, it would have been appropriate if the suspension order was issued by a five-judge Supreme Court bench under the Practice and Procedure Act than the present three-judge bench, the minister said.

The minister, however, expressed the hope that in the outcome, the Supreme Court would uphold the PHC decision.

‘Proportional representation’

Meanwhile, Advocate Sikandar Bashir Mohmand, representing the ECP, submitted that according to Articles 51 and 106 of the Constitution the reserved seats needed to be allocated on the proportional representation system only to those political parties who contested the general elections and won at least one seat in the general elections.

Since SIC did not contest the elections and did not win even a single seat in the Feb 8 general elections, it cannot be considered a political party in terms of Articles 51(6)(d) and (e) and 106(2)(c).

The AGP also supported the contentions of the ECP counsel and frankly conceded that this was a case of first impression involving questions of constitutional law that had not been addressed by the apex court earlier.

The court said the appeal arising out of these petitions would be heard on the basis of available records; however, both sides were at liberty to file any additional documents, which were part of the record before the fora but had not been filed with instant petitions.

The court also issued notices under Order 27A of the Code of Civil Procedure (CPC) to the AGP as well as the advocates-general of the provinces.

Justice Athar Minallah observed that being the constitutional body it was the right of the ECP to protect the fundamental right of the electorates to vote.

Separately, former Additional Attorney General Tariq Mehmood Khokhar said the Supreme Court’s suspension of the PHC judgement on the reserved seats halts the “corrosive effects of the last general elections”. “It halts the constitutional amendment plans under diktat to rule us under its democracy, its constitution, its laws and its judges,” he said, adding the judicial independence was not for the benefit of the judges but for the benefit of the rule of law. ‎

Published in Dawn, May 7th, 2024