ISLAMABAD: The Sup­reme Court reserved on Tuesday its ruling on a set of appeals by the Sunni Ittehad Council (SIC) aga­inst the denial of reserved seats for women and non-Muslims to it by the Pesha­war High Court (PHC) and the Election Commission of Pakistan (ECP).

Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the full court closed the proceedings, though Justice Munib Akhtar presumed to have suggested announcing the decision on Tuesday. CJP Isa, however, observed that the court order may be longish and since the judges had yet to consult each other, the judgement was being reserved.

Earlier on May 6, a sma­ller bench had suspended the PHC verdict and ECP decision of depriving SIC of seats reserved for women and minorities.

As a result, the ECP on May 13 suspended the not­i­f­i­cations of 77 returned candidates on reserved seats in the assemblies.

On Tuesday, Justice Athar Minallah observed that the Constitution was premised on one fundamental principle — self-governance, of which the most important pillar was the right to vote.

Justice Minallah wondered why ECP was shying away from showing bona fide that the commission did its best to hold the elections in a fair manner.

He regretted people were the real stakeholders who voted for a major party but were excluded from the political process, pointing out that this was an issue of fundamental rights and not just the rights of one party.

He said serious questions were raised about the conduct of elections in 2018 also when PML-N was at the receiving end. “Are we going to repeat the same by keeping mum about it and allow the people to suffer and their fundamental right being infringed,” Justice Minallah wondered.

Justice Waheed noted that earlier the government and its institutions were considered bona fide litigants but at present the ECP had come before the court to win a case and behaving like an ordinary litigant. At the outset, senior counsel Faisal Siddiqui representing SIC contended that ECP failed to fulfil its constitutional mandate rather acted in a discriminatory and arbitrary manner.

Presenting 2019 election tabulation from the Khyber Pakhtunkhwa assembly, after Fata merger, he explained, three independents had then joined Balochistan Awami Party (BAP) and got one reserved seats in the end. “Now the ECP describes this decision as per-incurium (lack of care)”, which he said was a dishonest answer. This issue had been raised before the ECP earlier as well, but it never called the decision “per-incurium” rather “denied the existing of its own document and thus acted in a mala fide manner”.

The counsel argued there was no legal requirement for submission of a schedule for list of candidates for reserved seats before the election under Section 140 of the Elections Act, 2017 and Article 51 of the Constitution.

The counsel, however, conceded that unlike the SIC, the BAP had contested the elections though the latter didn’t secure any seat.

Justice Irfan Saadat Khan explained that the SIC case was different from that of BAP. In fact the SIC earned a bonus without participating in the election, as a huge number of returned candidates joined the SIC, Justice Khan wondered.

The CJP wondered whether the SC was bound by ECP’s interpretation of the law and if the counsel wanted the court to take judicial notice of this fact.

“Did the counsel want to open the 2018 elections, which the court can do but the counsel cannot just pick an isolated incident and tell the court that it is binding on it or that was the correct interpretation of the Constitution,” the CJP remarked, adding it would be a novel way of arguing a case.

The counsel said he was only showing ECP’s arbitrariness in the conduct of the elections, adding the court always intervened when there was a “constitutional hypocrisy” by the commission.

Referring to the clause in the Constitution of SIC that the council cannot accept any member who was not a Muslim, the counsel cited the example of ancient Greeks who used to say “If you cannot attack the argument, attack the person.”

The counsel highlighted that the JUI-F also had a similar provision yet the ECP granted them the minority reserved seat.

When during the hearing, Justice Syed Hasan Azhar Rizvi asked the counsel if the text of the Constitution allowed allocation of the remaining reserved seats to other parties in the Parliament, the counsel replied in the negative saying it could not be done.

The counsel emphasised that the court should not allow a “minority government being turned into a majority government”.

Later, Salman Akram Raja while representing PTI leader Kanwal Shozab contended that denial of reserved seats would lead to an unrepresentative assemblies of KP and Punjab.

He said the record presented by the ECP before the court was incomplete and unreliable.The counsel alleged that instead of being independent and impartial, the ECP had become adversaries when their interest should be to bow before the will of the people. The way ECP treated PTI, the independent candidates had “no other choice but SIC” to join and could not have rejoined the PTI and thus claiming the benefit of Article 51(d) of the Constitution which did not oust political parties from reserved seats on account of independents joining them.

Published in Dawn, July 10th, 2024