SC questions how party can get reserved seats without contesting polls at own symbol

A 13-member full-court bench of the Supreme Court (SC), headed by Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa, heard the Sunni Ittehad Council’s (SIC) reserved seats’ case, reported 24NewsHD TV channel on Monday.

The SIC had challenged in the apex court the Election Commission of Pakistan’s (ECP) and the Peshawar High Court’s (PHC) verdicts in the case. SIC’s lawyer Faisal Siddiqui gave his arguments in the case.

In its reply submitted to the SC a couple of days ago, the ECP stated that the SIC ‘is no longer entitled to the reserved seats’. It reiterated that the SIC’s eligibility was compromised on several grounds.

On May 6, a three-member bench of the Supreme Court, headed by Justice Mansoor Ali Shah, had suspended the ECP and the PHC’s verdicts on the SIC’s plea, seeking reserved seats.

As the hearing began on Monday, Justice Jamal Mandokhel of the Supreme Court (SC) asked how a political party that did not contest the general elections could be allotted reserved seats.

SIC’s counsel Faisal Siddiqui argued that an independent candidate after getting elected could join any political party. He opined that the ECP’s definition of a political party was wrong. “The election commission made a wrong interpretation of the constitution while giving the decision in the case,” the SIC lawyer said.

The chief justice asked Siddiqui to make a correct interpretation of the constitution if he thought that the interpretation done by the ECP was ‘flawed’. “Leave the election commission. Please go ahead with your arguments,” the CJP asked the SIC’s lawyer. “Tell me how SIC could be allotted seats in the light of the constitution,” he asked. Justice Mandokhel said that the legislators getting elected as independent candidates could join any party that had contested the general elections.

“The reason why MNAs of a party are in the assembly is because their party has contested the elections,” the judge said, adding, “How come a party that did not contest the elections could be given reserved seats.”

In its reply submitted to the SC a day ago, the ECP has stated that the SIC is no longer entitled to the reserved seats. It reiterated that the SIC’s eligibility was compromised on several grounds.

Siddiqui emphasized that the court should interpret the constitution progressively, “Justice Mandokhel has given a similar interpretation in his recent judgment,” he added. Justice Aminuddin Khan sought clarification on the procedure for a member to join political parties.

CJP Isa also questioned whether we should disregard the natural meaning of the Constitution, and if so, why. Faisal Siddiqui remarked, “The core issue revolves around the purpose of constitutional provisions.”

Justice Mandokhel questioned why special seats should be allocated to those who did not participate in the elections. Justice Saadat argued that adhering strictly to constitutional wording risks rendering its intent ineffective adding SIC has been declared as not being a political party.

Justice Minallah commented that once a political party loses its election symbol, it ceases to be a political party. He further pointed out that PTI was an unlisted political party and that ECP had categorized it as an unlisted political entity. The chief justice again questioned why PTI members would join another party if PTI is still considered a political party. “If this argument is accepted as true, then why did you commit suicide by joining another party,” CJP Isa remarked.

The CJP remarked “Why PTI candidates committed suicide after being elected independent. The problem would not have arisen today had they stayed in PTI.” He added that the stance contradicts the party's own arguments. Counsel Siddiqui informed the court that revision over PTI intra-party elections was pending.

Siddiqui said that reserved seats would be given to a party under the principle of proportional representation. “Every party gets these seats after the inclusion of independents in it,” he said.

Speaking on the occasion, Justice Irfan Saadat said that when the SIC did not contest the elections, then obviously it could not have representation in the assemblies. “And when presently it has no representation, then on which grounds the party could be allotted these seats.”

Justice Athar Minallah said that the ECP had acknowledged that the PTI was a political party. “And even if an electoral symbol is taken away from a party, it does not imply that it has ceased to exist,” the judge said, and added, “When PTI continues to exist as a political party, then why did the candidates backed by it dissociated themselves from it after getting elected?

"It is beyond comprehension,” Justice Minallah said. He went on to say that a registered party was not bound to contest polls on one election symbol. The CJP said he would not listen to the complaint that the ECP had done an injustice to the PTI. “We will follow the law and the constitution.”

Then addressing Siddiqui, he said that he was SIC’s, and not PTI’s lawyer. “Your arguments in the favour of the PTI show a conflict of interests,” the chief justice remarked.

He further said that it was the PTI, and not the SIC, from which the election symbol had been snatched. “The reason why the mess the country is in is because of breach of the constitution time and again. Let me tell you that I have taken an oath that I will protect the constitution,” he said, adding, “What the SC is to follow is the constitution, and not to protect the interests of any party or the government.”

The truth of the matter was, the CJP said, that the PTI was not interested in holding intra-party elections. “Don’t point fingers at others,” he said. SIC’s lawyer Siddiqui said there was no choice for the affected parties in the country.

“Don’t drag politics into the hearing,” the chief justice asked the lawyer. “Let me remind you that there have been such great judges in the country’s history who refused to take oath under the PCO.”

Siddiqui lamented that the PTI was deprived of its electoral symbol just a night before the elections.

Speaking on the occasion, Justice Muneeb Akhtar said it was the PTI’s stance that a majority of those reaching assemblies as independents belonged to the party. “If they belong to the PTI even after winning their seats, then why there was a need for rejoining the same party,” he wondered.

The judge went on to say that the prelude to the constitution was very explicit. “Independents are free to join the party of their choice at any time,” he said. Justice Muhammad Ali Mazhar said that the people had voted for the PTI. “But these independent candidates, backed by the PTI, after returning to the assemblies joined the SIC,” he said, adding, “What will become of those who had voted for the PTI?”

“The fact is that the people did not vote for the SIC,” the judge added. Justice Isa said that the election commission kept urging the PTI to hold intra-party elections, but it did not.

Justice Minallah said that questions were raised over the fairness of the general elections held on February 8, 2024. “What happened in 2024 was a repeat of the 2018 elections,” he said, adding, “Who can forget that those who did not hold pressers were picked up? These things are an open secret.” “Should the Supreme Court shut its eyes to what happened prior to this year’s elections? Should we remain silent on the violations of basic human rights and the constitution?” Justice Minallah questioned. SIC’s lawyer said he concurred with his remarks.

Justice Mansoor Ali Shah asked Siddiqui whether the SIC, he was representing in the court, was a political party. “And if the answer is in negative, then what will become of the reserved seats it claims it is entitled to?” he asked.

How, the judge went on to say, the principle of proportional representation would apply to the SIC. “Will the reserved seats belonging to the PTI remain vacant?” he questioned. Siddiqui replied that certainly not.

Justice Muneeb Akhtar, however, said in his opinion PTI-backed independent candidates, who won their seats, could get reserved seats. “But we will have to look at the procedure of how the SIC could get these seats,” he added.

SIC’s lawyer argued that a party could not be given more reserved seats than it had won. “What I am trying to say is that reserved seats could not be left vacant,” Siddiqui said.

Justice Mansoor said that a party would get reserved seats in proportion to the seats it had won in the elections. “But when you are not a political party, then how could you be entitled to these seats?” the judge questioned.

Justice Mansoor went on to say that another question was what would be the situation if the party, which was not a political party, does not get these seats. Siddiqui said that if SIC did not get these seats, they will continue to remain vacant.

The CJP asked SIC’s lawyer whether the manifestos of the PTI and the party he was representing were the same.

Siddiqui replied that that was not the case and the two parties had different manifestos. SIC’s lawyer further said that the question whether the SIC was a political party or not did not arise from the word go. “As a matter of fact, the ECP had acknowledged that the SIC was a political party,” Siddiqui said.

Justice Minallah said that even today the election commission considered SIC a political party. “The parliament cannot be left incomplete,” he said, adding, “In my opinion, it is the ECP’s responsibility to complete the parliament.”

“In my opinion, the ECP, instead of becoming the protector of the rights of voters, started opposing them,” he said, adding, “It was the election commission which had to decide whether the PTI would get reserved seats or the SIC.” The chief justice said that somebody had given a wrong advice to the PTI candidates. “Go and take that individual to court,” he advised.

Justice Yahya Afridi asked Siddiqui that as per the ECP, it was laid down in the SIC’s constitution that non-Muslims and women could not become members of the party. “Is it true?” SIC’s counsel said it was true to the extent of non-Muslims.

The CJP asked Siddiqui to better look at the national flag. “Don’t you see that there is a representation of minorities even in the country’s flag?” he questioned.

“Please also go through the statement of Father of the Nation Quaid-e-Azam Muhammad Ali Jinnah,” Justice Isa said, and asked SIC’s lawyer, did not he think that the constitution of the party he was representing was a violation of the country’s constitution.

The SIC counsel asserted that the definition of a “political party” in a relevant provision and its main provision ought to be the same. CJP Isa then stressed that the apex court was concerned with what the Constitution stated rather than how the ECP interpreted it.

Siddiqui highlighted that the main question was: “Can a political party which has not won or secured any seats in the general elections be entitled to reserved seats simply because they secured general seats as a result of independents joining them after the elections?” He asserted that the words “won” and “secured” were of great importance and the answer to the above lied in how they were interpreted, adding that rather than their “natural meaning”, it was the “intention of the Constitution-maker” that should be ascertained.

Justice Mandokhail wondered if a party that did not bother to contest the elections should be given reserved seats rather than those that did. To this, Siddiqui replied that the allocation of reserved seats was not dependent on a party’s performance in the general elections but on the “basis of general seats in the assembly”.

Justice Minallah noted that the ECP had “confused the entire matter” by declaring that the PTI was no more a political party as its symbol was taken away but “yet they recognised it as an enlisted political party”.

CJP Isa then remarked, “PTI continued to exist as a political party after the decision, then why did these independents not join PTI? Simple.” “Didn’t you (PTI) commit suicide yourself?” the chief justice said while addressing Siddiqui, apparently referring to the PTI. “You could have simply said we want to join PTI. End of story.”

CJP then noted that Siddiqui had a “great conflict of interest”, Justice Isa told him to make up his mind about who he represented — the SIC or the PTI.

Justice Akhtar observed that the PTI-backed candidates “remained throughout candidates of the PTI irrespective of the election symbol”. The judge reiterated the importance of “proportional representation”, according to which each political party must not get more than what it ought to be but must also get its share.

Justice Akhtar noted that the candidates had filed their nomination papers as PTI hopefuls but the “ECP says ‘no, they are independent’. How?” Justice Aminuddin Khan then stated that some of the candidates had submitted their papers as candidates of PTI-Nazriati. CJP Isa again highlighted that Siddiqui had a conflict of interest, stating that the cases of the PTI and the SIC were not interchangeable. “We are not here to hear ‘how much injustice’ the ECP did. We want to see what the Constitution says.”

He further said that Siddiqui represented the SIC, asking him: “Would you be happy if all these candidates left you? You have to say ‘no’.” The counsel then said, “Words of the Constitution are sacred but our interpretations are not sacred. Interpretations can be subject to human fallibility.”

Justice Akhtar stressed that the question was about whether the court was bound by the ECP “channelising returned candidates of a political party into the category of ‘independents’” or by the intent of the Constitutional provisions.

Justice Minallah then noted that “serious questions” had been raised about the manner in which elections were held. “The reality is known to everyone. How do we then interpret the Constitution — allow the coercive apparatus to continue and achieve their purposes or so that the people are not disenfranchised.”

The chief justice then recalled that the ECP had “pleaded” before the PTI to hold its intra-party elections yet it did not. Justice Mandokhail then remarked that Siddiqi was presenting a “very dangerous interpretation”, which would deprive parties that people had voted for and empower the ECP to allocate seats to any newly formed party.

After Siddiqui had concluded his arguments, Asad Durrani, the counsel for KP Assembly Speaker Babar Saleem Swati, came to the rostrum. Following Durrani’s brief arguments, Advocate Salman Akram Raja, a petitioner who also contested the Feb 8 elections as a PTI-backed candidate, came to the rostrum.

While CJP Isa noted that Raja’s petition was not assigned a number, the advocate was allowed to present his arguments. A 45-minute break was then given in the proceedings, after which Raja resumed his arguments.

During the hearing PTI leader Kanwal Shauzeb counsel Salman Akram Raja was told by the CJP that find a solution for your mistakes. “Some political parties were in trouble in the past and are still in trouble”, Justice Atharmanullah remarked. The Election Commission gave a wrong decision without thinking its repercussions, Salman Akram Raja said.

“If you feel something is wrong with the Election Commission, file a petition or amend the rules”, Chief Justice told Salam Akram. Election Commission is a constitutional institution and deserves respect, Chief Justice Qazi Faiz Isa remarked. CJP said this is the problem that nothing is allowed to flourish in Pakistan. The Supreme Court is also entitled to be treated with respect, CJP added.

Did the 86 SIC members, when submitting the papers, say that they belong to Tehreek-e-Insaaf? Justice Atharmanullah questioned. Do people trust the election system? Justice Atharmanullah said. No one disagrees with political parties, independent candidates get some recognition, Justice Jamal Mandukhel. It cannot be said that the political party in the Parliament has no status in the society, lawyer Salman Akram Raja remarked.

“I am looking at the case as an independent candidate and not as a PTI candidate”, remarked lawyer Salman Akram Raja.

“You could also have joined Jamiat Ulema Islam. Whose opinion was there to join the Sunni alliance”? Chief Justice questioned Salman Akram Raja. It was possible that the political mindset did not match with other parties, lawyer Salman Akram replied. The decision to join Sunni Unity Council was political, lawyer Salman Akram said.

“We were forced to do this by the Election Commission, the voters are with us, in the second party, we had to go after the decision of the Election Commission, lawyer Salman Akram Raja told the court. Justice Jamal Mandukhel said “PTI was told in election symbol case to come to the court if it face a problem in reserved seats”.

If the problem arose due to the wrong interpretation of the court decision, can this court correct it? Justice Athar Min Allah remarked. If the court does complete justice under Article 187, I will call it a great decision, lawyer Salman Akram Raja said. The people of Pakistan will also celebrate this decision, Salman Akram Raja said. On the occasion, CJP questioned to Salma Raja that PTI candidate could have gone to the party of Achakzai Sahib.

“We were looking for a party which could walk with PTI and in future they could merge with us”, Salman Akram Raja replied. Justice Jamal Mandukhel remarked that PTI would have filed a petition against the Election Commission's decision. “When Tehreek-e-Insaf contested as independent elections, Hamid Raza also contested independent elections, lawyer Salman Akram Raja told the court. Hamid Raza did not contest the election from his own party, Chief Justice Qazi Faiz Isa questioned. Hamid Raza was contesting the election as Tehreek-e-Insaf candidate, lawyer Salman Akram Raja replied.

Justice Yahya Afridi questioned who is chairman PTI? Currently Gohar Ali Khan is the Chairman of Tehreek-e-Insaf, Salman Akram replied. How did Gauhar Ali Khan become PTI chairman? He said he is independent, Justice Yahya Afridi remarked. The Election Commission declared Gauhar Ali Khan an independent candidate, lawyer Salman Akram Raja said. Gauhar Ali Khan did not join Sunni Union Council, lawyer said.

CJP said once MQM and PTI were an ally now MQM was not with PTI. What will happen if the Sunni Alliance Council leaves PTI tomorrow, Chief Justice of Pakistan questioned. How can Salman Akram Raja as an independent candidate go to a party which does not exist, Justice Irfan Saadat questioned? It is not mandatory for any party to participate in elections, lawyer Salman Akram Raja said.

During the Justice Naeem Akhtar Afghan said the chairman of Sunni Ittehad also joined the political party as an independent candidate.

In 2018, Sahibzada Hamid Raza contested the election as an independent against PTI, said Justice Naeem Akhtar Afghan. In 2018, Hamid Raza got 5093 votes. On January 23, 2024, Hamid Raza was written as a PTI candidate in the list of PTI, said Justice Naeem Akhtar Afghan. Barrister Gohar released the list of candidates for National Assembly and according to the list, the name of PTI candidate Hamid Raza was at number 104, Justice Naeem Akhtar Afghan remarked. The list of PTI candidates was released on the website. In the 2024 elections, Hamid Raza got more than 1,28000 votes as an independent candidate. Did Hamid Raza get so many votes because of PTI's certificate, Justice Naeem Akhtar Afghan questioned. The legal status of Hamid Raza Sahib should be told tomorrow, Justice Naeem Akhtar Afghan ordered.

When the arguments of Salman Akram Raja got completed, then CJP questioned who will give arguments next. The arguments of PPP's lawyer Farooq H. Naik and Election Commission's lawyer and Attorney General have been left, Chief Justice said. I am representing an aggrieved party, Advocate Makhdoom Ali Khan remarked.

The CJP remarked that the Supreme Court will hear the lawyers of the other parties tomorrow and the hearing of the case will be completed tomorrow. After this the hearing of the case was adjourned till half past nine tomorrow morning.

After the hearing, PTI leader Kanwal Shauzab while talking to media outside the Supreme Court said that their lawyers have completed their arguments today. She claimed that “when an independent candidate joins a party, it becomes a parliamentary party”.

Kanwal Shauzab was of the view that the party in which an independent candidate goes should be given specific seats. Now the Election Commission will explain why it misinterpreted the decision of the Supreme Court, Kanwal Shauzab remarked. She said PTI voters were the biggest losers of ECP decision. She said ECP violated the sanctity of the voter.

Reporter: Asher Ahsen and Amanat Ghiskori