As the Supreme Court on Monday took up the case of reserved seats, Justice Jamal Khan Mandokhail noted that the public did not vote for independent candidates but those nominated by the PTI in the February 8 general elections.

Justice Mandokhail noted, “The public did not vote for an independent candidate but rather the candidates being supported by a political party”. “This was the people’s right; the people voted for the PTI,” he added.

His remarks came as a full bench of the Supreme Court heard the Sunni Ittehad Council’s (SIC) plea against the denial of reserved seats in assemblies for women and minorities.

The SIC had earlier been joined by PTI-backed independent candidates after they won the Feb 8 elections as their party had been deprived of its electoral symbol ‘bat’ in an SC ruling.

On May 6, a three-member SC bench had suspended the Peshawar High Court’s (PHC) verdict denying the SIC — the new home for PTI lawmakers-elect — reserved seats.

Later the same month, the PPP — a major beneficiary along with the PML-N of the Election Commission of Pakistan (ECP) March 3 verdict to distribute the seats among other parliamentary parties — nominated senior counsel Farooq H. Naek to represent the party in the case.

In accordance with the apex court’s May 6 ruling, the ECP had then suspended victory notifications of 77 lawmakers allocated reserved seats in addition to the ones distributed earlier, causing the ruling coalition to lose its two-thirds majority in the National Assembly.

Last week, a full court had been formed to hear the case, comprising all judges except Justice Musarrat Hilali.

Subsequently, a 13-member bench — 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 today.

The proceedings were broadcast live on the SC’s website and its YouTube channel.

Advocate Salman Akram Raja appeared as the SIC counsel while Faisal Siddiqi was present on behalf of the party’s female candidates who were denied the reserved seats. PTI MNA Barrister Gohar Ali Khan was also present while Sikandar Bashir Momand appeared as the ECP lawyer.

After Siddiqi presented his partial arguments, the hearing was adjourned to 11:30am tomorrow (Tuesday).

Meanwhile, in a press release issued today, the Pakistan Bar Council (PBC) said it “vehemently condemned” the PTI’s demand that CJP Isa recuse himself from benches hearing cases related to the party.

It termed the demand a “tactic being used to put pressure” on the top judge, denouncing it as “extremely deplorable”.

Asserting that Justice Isa was a “very competent, upright and independent judge”, the PBC “rejected any tactic to malign the institution of judiciary […] and motives to target” the CJP.

The hearing

At the outset of the hearing, the SIC counsels came to the rostrum, with Siddiqi reading aloud the May 6 order.

Reiterating grounds presented in a petition, he stated that the allocation of the reserved seats to other parties was in violation of Articles 51(vi)(d) and (e) of the Constitution.

The lawyer read out an ECP letter dated April 24 as stating that the SIC was a parliamentary party “having 82 general seats in the National Assembly” and was therefore entitled to reserved seats.

Here, CJP Isa asked Siddiqi who the beneficiaries were in the case and to give a detailed breakdown of the reserved seats distributed to the ruling coalition parties above the initially allocated ones. Complying with the order, the lawyer informed the court that there were 22 seats for women in total in the NA.

Upon a discrepancy in the numbers arising, Siddiqi pointed out that the electoral watchdog had “made a few mistakes” and had contradictory statements mentioning a total of “77 or 78” such reserved seats.

Justice Isa then asked Siddiqi about the party-wise breakdown of the additional seats allocated to them, which the counsel complied with. Siddiqi then also provided the court with details of such reserved seats in the provincial assemblies.

At this point, CJP Isa called the ECP counsel to clarify the number of additionally allocated reserved seats for women in the NA. Momand then told the court that the commission’s position was “23 seats” and was confirming the same.

Siddiqi then also detailed the number of general seats won by each party in the February 8 elections, arguing, “This is important as we (SIC) are recognised as a parliamentary party.”

Here, Justice Minallah asked Siddiqi about the “chart” listing the above information, at which the lawyer said it was notified by the ECP. “So they have notified the SIC as a parliamentary party,” Justice Minallah observed.

The lawyer recalled that the candidates had joined the SIC within three days of their victory notifications, at which Justice Mandokhail said, “Thinking of it, it is decided from before when the nomination papers are submitted […] that which candidate is from what party.”

He asked if the candidates who joined the SIC had received any party affiliation certificate during the nomination process. Justice Minallah repeated the same question: “When those 82 people filed their returns (notifications), did they show any political party’s affiliation?”

At Siddiqi’s response in the affirmative, Justice Mandokhail wondered how they were then called independent candidates. The SIC counsel responded that the ECP had told the candidates they could not contest the elections as a PTI candidate but as an independent.

“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. And secondly, does that candidate have the right that once they submit the [nomination] papers, they quit that party?” Justice Mandokhail asked.

Here, CJP Isa asked Siddiqi if any of the beneficiary parties were “supporting” the SIC, to which the lawyer responded with a smile.

The counsels of the PML-N, the PPP, the Jamiat Ulema-i-Islam-Fazl (JUI-F) and the PTI-Parliamentarians (PTI-P) then came to rostrum one by one and informed the court that they opposed the SIC’s petition. No counsel was representing the PML-Q, the Awami National Party (ANP) or the Istehkam-i-Pakistan Party (IPP).

CJP Isa then asked Siddiqi if the SIC was a political party and to show the court its registration, to which he replied that the ECP had “recognised the party and there was no dispute on it”.

When Justice Mandokhail asked if the PTI had made its candidates contest the general elections, CJP Isa said, “I request my colleague to let you argue in your style, and then we will ask you questions later.”

The SIC counsel then detailed the election schedule before the apex court. Referring to a document, Siddiqi said, “I would have filed that but our office has been sealed so all our documents are in that office. That’s why we’re handicapped.”

To this, the top judge said, “Don’t make a fleeting statement. If you want an order, we will pass an order. […] If your case is affected by it, we would want that document […] How will we know Mr Faisal Siddiqi? There is only one way to know something that is by filing something in the court.”

At this point, Gohar came to the rostrum, at which Justice Isa remarked, “I don’t want him to address; please don’t do this. If you have to file an application, you may do so.”

After Siddiqi detailed the back-and-forth court verdicts leading to the revocation of the PTI’s electoral symbol, Justice Mandokhail asked whether the PTI maintained its status as a political party after losing its symbol.

He further asked whether the PTI also 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?” the judge asked.

When Justice Minallah asked if the PTI was an “enlisted party of the ECP today”, Siddiqi replied in the affirmative, to which the judge said that “answered the question”.

At this point, Justice Akhtar observed: “If you look at the Constitutional understanding of a political party, then […] where the basic rule is proportionality. That’s it; that balance can never be killed.”

He then asked that in the “very very peculiar facts and circumstances before us — a national political party admittedly registered with the ECP […] fought the national elections without a common election symbol — is that still, for the purposes of allocation, a political party within the meaning of clause (d)?”.

“The Constitution has given two distinct commands — do not give anything more but do not deprive the other,” Justice Akhtar noted.

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, adding that the candidates were “never accepted”.

As the SIC counsel began addressing the questions raised by multiple judges, CJP Isa said, “I tried to come to your rescue but it seems you don’t want rescuing. Why don’t you argue the matter in your own way?”

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”.

“Prima facie, it seems to me, with all due respect, how can you fulfil your duty while violating both the negative and the positive,” Justice Akhtar remarked, referring to the ECP’s mandate to ensure proportionality in allocating reserved seats.

Here, CJP Isa again directed Siddiqi to present his arguments rather than respond to the questions raised by other judges. Siddiqi argued that the electoral watchdog had recognised the SIC as a parliamentary party “as early as February 22”.

Justice Akhtar, reading aloud from a notification, noted that the ECP had written that the SIC had won general seats even though as per its stance of it not being a parliamentary party, it “should not be there at all”.

“Seems to me, there’s an apparent illogicality here,” Justice Akhtar observed, adding, “Prima facie, the only way that the ECP could have put their (SIC’s) name at all was if it had implicitly recognised that behind them stood the PTI people.”

Justice Minallah remarked that if the SIC had made the “mistake” of applying in its name, it was the ECP’s duty to correct it.

To this, Justice Mandokhail said if that was the case, then the seats will go to the PTI, not the SIC.

Justice Minallah asserted that the matter was of the people, who “can never be disenfranchised in any way” and that the ECP should have corrected the irregularities so that the people “should not have suffered”. Here, CJP Isa again ordered the SIC counsel to argue his case.

Justice Mandokhail noted, “The public did not vote for an independent candidate but rather the candidates being supported by a political party”. “So did these candidates belong to that party or not?” he asked.

“This was the people’s right; the people voted for the PTI,” he noted.

Here, addressing Siddiqi, CJP Isa remarked, “We are sitting here to listen to you then will decide the matter.” At this, Justice Akhtar said, “That’s an unfair statement. A full court is sitting here; every judge is entitled to ask whatever question he or she wants.”

“Absolutely correct but I just want to hear your (Siddiqi’s) contentions,” the chief justice responded.

Legal tussle for reserved seats

In a 4-1 verdict in March, the ECP had ruled that the 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”.

The commission had also decided to distribute the seats among other parliamentary parties, with the PML-N and the PPP becoming major beneficiaries with 16 and five additional seats while the Jamiat Ulema-i-Islam Fazl was given four.

Later the same month, the PHC had dismissed an SIC plea challenging the ECP decision and denied it reserved seats.

In April, the SIC filed a petition before the SC — moved by party chief Sahibzada Hamid Raza — seeking to set aside the PHC judgment.

Subsequently, a three-member bench headed by Justice Mansoor Ali Shah and also including Justice Muhammad Ali Mazhar and Justice Athar Minallah took up the appeal and suspended the PHC and ECP verdicts, clarifying it applied only to the reserved seats distributed over and above the initially allocated ones to political parties.

“It is paramount to prioritise the integrity of the elections so that the Parliament remains a true reflection of the will of the people,” the written order had noted.

In a follow-up to the SC order, the ECP had suspended victory notifications of 77 lawmakers elected on reserved seats that had been denied to the SIC.

The suspended lawmakers included 44 from the PML-N, 15 from the PPP, 13 from the JUI-F and one each from the PML-Q, IPP, PTI-P, MQM-P and the ANP.

Resultantly, the ruling coalition has lost its two-thirds majority in the National Assembly for now, with its numerical strength shrinking to 209 from 228.