The Peshawar High Court on Thursday dismissed the Sunni Ittehad Council’s petition challenging the Election Commission of Pakistan’s decision to reject the party allocation of reserved women and minority seats.

In a 4-1 verdict earlier this month, the electoral watchdog 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 which is the requirement of law”.

The SIC — joined by PTI-backed independents who won the elections sans their electoral symbol — had filed the petition through its chairman, Sahibzada Muhammad Hamid Raza, seeking directives of the court for the ECP to allocate reserved seats to the council based on their strength in the national and provincial assemblies.

The commission had also decided to distribute the seats among other parliamentary parties, with the PML-N and the PPP becoming major beneficiaries. Meanwhile, the verdict was rejected by the PTI as unconstitutional.

On March 6, a two-member bench of the PHC had barred the oath-taking of lawmakers allotted the reserved seats. It issued a pre-admission to the ECP and all the respondents in the case, listing six questions that needed to be determined. The next day, a five-member larger bench extended the bar until March 13.

Yesterday, Attorney-General for Pakistan Mansoor Usman Awan and the counsels for the PPP and ECP had completed their arguments.

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AGP Awan had argued that a political party could get reserved seats only if it won a general one. ECP lawyer Sikander Basheer Momand had supported his arguments, stating that the SIC was a political party but not a parliamentary one.

Today, the bench — led by Justice Ishtiaq Ibrahim and including Justices Ijaz Anwar, S.M. Attique Shah, Shakeel Ahmed and Syed Arshad Ali — resumed hearing the case.

PTI’s Ali Zafar appeared as the counsel for the SIC and completed his arguments, following which the court reserved its verdict.

After the verdict was announced, SIC candidates for reserved seats, Saima Khalid and Asma Kakakhel told Dawn.com that they rejected the PHC’s decision and would challenge it in the Supreme Court.

It is not a matter of women’s rights but of all women, they said. Both of them were also present during the PHC hearing today.

The hearing

At the outset of the hearing, Zafar informed the court that 86 independent candidates from National Assembly, 107 from Punjab Assembly, 90 from KP Assembly, 9 from Sindh Assembly and one from Balochistan Assembly had joined the SIC.

He contended that the SIC should have been allocated reserved seats “under Article 104’s section (c)” (party lists for reserved seats) of the Elections Act. “We expected that we would get the reserved seats. The ECP was mandated to allot 78 seats to the SIC but it did not do so.”

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Here, the court asked him if the case before it was pertaining to the entire country, to which Zafar replied that it was limited to the national and KP assemblies’ reserved seats.

Zafar further said the reserved seats “belonging to the SIC were instead given to occupier groups”, at which the court directed him to not refer to them as such, noting that the seats were allotted by the ECP.

The lawyer then said he wanted to present his arguments on whether the PHC had jurisdiction over NA seats, emphasising that “six questions raised by the court are very important”.

On the matter of what defines a political party, he said: “In my opinion, a political party is that which is enlisted [with the ECP as one]. The mention of [the definition of] a political party is present in sections 202 (enlistment of political parties) and 210 (information about the sources of funds) of the Elections Act.”

Zafar argued, “The SIC did not contest the elections but this is not necessary. Boycott is also a part of the elections.” Here, the court asked him, “Are you saying that a party would still be a political party if it did not contest the elections?”

To this, Zafar responded that the SIC had an electoral symbol and the right to contest elections. The court then asked whether a political party maintained its status as one if it did not contest elections.

The counsel then replied, “I want to state that the SIC is a political party. No one can take away the SIC’s right as long as it is a political party. The mention of political justice is clear in the Constitution. […] Political parties can take part in elections, form government and gain reserved seats.”

Here, Justice Ahmed reiterated the earlier question of what would happen in case the party did not take part in the elections, at which Zafar replied that we was first presenting arguments on his “rights as a political party” as per Article 17 (freedom of association) of the Constitution.

“The ECP is confused at differentiating between a parliamentary party and a poltical one,” he asserted. Upon the court observing that the SIC had not won any general seat in the Feb 8 elections, Zafar acknowledged the same and insisted that it still existed as a political party.

“[For example, if] I did not take part [in the elections] and 10 independent candidates joined me, then the number of [seats] would be 10,” he argued. However, the court pointed out that if he had not won even a single seat, the supposed 10 independents would not be able to join him.

It emphasised that the word “win” had been used in the law. “Did you not weaken the PTI’s case by joining the SIC?” the court wondered, at which Zafar recalled that the PTI had lost its electoral symbol and was “disqualified”.

The SIC counsel argued against allocating other political parties a greater number of seats “than they had won”. Here, Justice Ibrahim observed that the Parliament would then be “incomplete” if the reserved seats were not allocated. Zafar then replied, “This is why we are asking you to interpret the Constitution in a manner so that this vaccuum is not created.”

The SIC counsel said the ECP “could also issue another schedule” that would enable it to submit the list of candidates for reserved seats. The court then remarked, “If you add anything to zero, it equals to zero.”

“It would be a better interpretation that the election schedule for the reserve seats is released after the [general] elections. Section 104 says that a day would be fixed but does not specify when.”

“What law would be violated by alloting the SIC reserved seats?” he asked, adding that his client was only asking for its “right — no more or less than that”. Zafar then completed his arguments.

Subsequently, the PHC reserved its verdict on the matter.