Political parties, not independents, are entitled to reserved seats, SC told

Attorney General for Pakistan (AGP) Mansoor Usman Awan told the Supreme Court (SC) on Tuesday that as per the constitution, these were political parties, and not independents, which were entitled to reserved seats, reported 24NewsHD TV channel.  

During the hearing of the Sunni Ittehad Council’s (SIC) reserved seats case, he said that a political party would only be entitled to these seats if it had won at least one seat in the general elections.

A 13-member full-court bench of the SC, headed by Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa, heard the SIC’s appeals against the Election Commission of Pakistan (ECP) and the Peshawar High Court’s (PHC) verdicts that had denied the party reserved seats.

The AGP, on the occasion, also submitted to the court the record of reserved seats given to parties after the 2002 and 2018 general elections.

He told the court that Article 51 had been introduced in 2002 that dealt with these seats. “In 2002, the total number of these seats stood at 10,” he said, adding, “In 2018, out of a total 272 seats, the elections were held for 269 seats. As many as 13 independent candidates were elected in these elections. Of whom nine joined different political parties, and the formula of proportional representation was applied to 265 seats.”

The attorney general further explained that in 2018, there were 60 seats for women and 10 for minorities. “As many as 20 per cent of the candidates elected in the 2002 general elections from Balochistan were independent. And they were not taken into account while allotting these seats,” he said.

Addressing the AGP, Justice Athar Minallah said, “Awan sab, the basic question is that the ECP had deprived the party of a chance to contest the February 8, 2024 general elections. “By doing so, the ECP itself committed a breach of the constitution,” he said, and questioned, “Don’t you think that being the custodian of basic human rights, it is our duty to rectify this mistake.”

The attorney general replied that he would answer the question at the end of his arguments.

The chief justice said that he heard not a single party to the case saying that the reserved seats would remain vacant. “Even the SIC has taken the stance that these seats could not remain vacant,” the CJP said, adding, “Every party lays claim to these seats.”

He said that if the court wanted to do justice in the case, it would have to rely on the constitution.

AGP Awan said that in 2002 it was for the first time in the history of the National Assembly that reserved seats were allotted to parties under Article 51 of the constitution. “The purpose of introducing the article is to give representation to women and minorities,” he said.

He said the question now was to ascertain whether the SIC was entitled to these seats.

Justice Jamal Mandokhel said that in Article 51, there was a mention of seats, and not of membership.

Justice Ayesha Malik remarked that too many independent candidates won the February 8 elections.

Justice Mansoor Ali Shah said never ever in the country’s history, the apex court had to hear the case of independent candidates. “But this time around, there are a large number of independent candidates who have been elected to the assemblies, and the apex court is seized with the hearing of their case as well.”

Justice Muneeb said there was a need to investigate what was the reason that this time independent candidates reached assemblies in such large numbers. “Whether it was due to the wrong interpretation of the SC’s decision by the ECP that a large number of candidates had to contest elections as independents.”

“Don’t you think it is the apex court’s duty to rectify this mistake?” the judge questioned.  

Justice Muneeb said that the purpose of introducing the formula of proportional representation was to ensure that each and every segment of society could have representation in the assemblies. 

The AGP said that political parties were the real engine of a democratic system.

Justice Minallah reiterated that now it had been proven that the ECP’s interpretation of the apex court verdict was ‘flawed’. “And by doing so, it also committed a breach of the constitution,” he said, and added, “Attorney general sab, this is no ordinary case. It is related to the rights of people. Do you want us to invoke the law of necessity?”

Later, the court adjourned the case’s hearing until July 9.

CJP Isa said Pakistan would have to tread the path of the constitution. “There may be some wise judges in the court. But I am not,” he remarked.

Justice Mandokhel asked under which law the SIC was notified as a parliamentary party.

Justice Muneeb said as per the election commission’s record, the independent candidates belonged to the SIC. “How can then the commission deprive the party of reserved seats after recognizing it as a parliamentary party?” he questioned.

Justice Mansoor said it was not the land dispute case that the court was hearing. “And therefore, it cannot keep itself confined to the appeal.”

The AGP said that the birth of a political party preceded that of a parliamentary party.

Justice Muneeb said the court was not presently concerned with the issue of a parliamentary party.

“Under which section of the constitution, does a parliamentary party come into existence?” Justice Mansoor questioned.

The attorney general told him that Article 63-A of the constitution dealt with the subject.

Justice Mandokhel said that it was a parliamentary party which took all decisions in the parliament.

Justice Mansoor asked whether the ECP had recognized the SIC as a parliamentary party.

The AGP said he had no idea about that.

The judge then asked the attorney general under which law the election commission had declared the party a ‘parliamentary party’.

He then said that the party had made the commission’s notification part of the record it had submitted to the SC.

SIC’s counsel Faisal Siddiqui, on the occasion, presented in the court the NA Secretariat’s notification according to which Zartaj Gul was the SIC’s parliamentary leader in the assembly.

AGP Awan insisted that independents could not form a ‘parliamentary party’. “Independents have to join the party which has won at least one seat in the elections,” he argued.

The CJP remarked whether he (the AGP) meant to say that a political party became a parliamentary party if it had representation in the legislature.

Justice Mandokhel asked whether Article 51 would apply if independents formed a party.

Justice Muneeb said that on the one hand, it was said that the ECP was independent and was free to do what it liked. “There is an official correspondence between the NA secretariat and the election commission. The truth of the matter is that the commission recognizes SIC as a parliamentary party,” the judge said, adding, “In these circumstances, how on earth the ECP could change its stance on reserved seats.”

The attorney general said that a section of the constitution could not be read in isolation.

He further said that the notification to declare the SIC a parliamentary party was not issued under Article 63-A.

Justice Mandokhel said if his argument was accepted, then there would be no parliamentary leader of so many MNAs. “If we accept your opinion, then there could be no action against any lawmaker under Article 63-A if he or she defects to any other party.”

Justice Muneeb said all he wanted to know was how the ECP could deprive a party of reserved seats when it acknowledged it was a parliamentary party. “The commission, in a record presented to the NA secretariat, has shown the SIC a parliamentary party,” the judge said, adding, “After all, there is a purpose behind keeping a record.”

Reporter: Amanat Gishkori