SC stays seat allotment order of PHC

ISLAMABAD:

A three-judge bench of the Supreme Court on Monday allowed an appeal filed by the Sunni Ittehad Council (SIC) and suspended a Peshawar High Court (PHC) order allocating additional reserved seats to various political parties in national and provincial assemblies on Monday.

The bench headed by SC senior puisne judge Mansoor Ali Shah, comprising Justice Muhammad Ali Mazhar and Justice Athar Minallah, also issued notices to all respondents as it referred the matter to a three-member SC committee to form a larger bench.

The Election Commission of Pakistan (ECP) withdrew its election symbol from the PTI on December 22, 2023 in view of irregularities in its intra-party elections. The SC later upheld the ECP’s order and the party had to field its candidates in the February 8 assembly elections as independents.

Later, the PTI-backed independents joined the SIC and petitioned the ECP to allocate seats reserved for women and minorities in the national and provincial assemblies.

However, the ECP rejected the request on March 4, saying the SIC had not submitted its priority list of candidates for reserved seats ahead of the elections. The SIC challenged the order before the PHC, which upheld the ECP’s decision on March 14. The SIC later approached the SC against the order.

In its three-page written order, the Supreme Court observed that the issue of allocation of reserved seats affects the fundamental constitutional concept of a parliamentary democracy that the voice of voters is effectively reflected in the composition of assemblies.

“The democratic mandate requires that the allocation of reserved seats increases the representativeness of the electorate in the assemblies and upholds the principles of fairness and transparency in the electoral process.”

“It is of utmost importance to give priority to the integrity of the elections so that Parliament faithfully reflects the will of the people,” the order written by Justice Shah said.

While hearing the case, Justice Mansoor Ali Shah remarked that the court is only concerned with upholding the Constitution and ensuring that the mandate of the people is protected.

“The real problem is the public mandate, and the constitution provides for respecting the mandate. We need to examine whether the PHC regulation protects the public mandate or not.”

Justice Shah also asked how reserved seats would be distributed among political parties.
“Isn’t it against the constitutional principles of proportional representation to grant more reserved seats to a political party? How is it possible to transfer the mandate of one party to another party?

Justice Shah observed that reserved seats are allocated to each party on the principles of proportional representation and that technical objections raised by the ECP and confirmed by the PHC cannot override the constitutional principles.

“The ECP initially refused to recognize the SIC as a political party and did not allocate reserved seats to it, but later accepted it as a political party, thereby invalidating its earlier decision,” he said.

Justice Athar Minallah also observed that a political party gets as many reserved seats as its representation in the general seats warrants. He said legislators elected in reserved seats also represent the mandate of the people.

“Transferring the mandate of one party to another means directly depriving the people of their mandate,” he said.

He also pointed out that a political party does not need a single electoral symbol to participate in elections.

“The PTI is a registered political party. Where does it say in the law that a registered political party cannot participate in elections without an electoral symbol?” he asked.
Referring to the ECP’s December 22 order, he said the country’s largest political party had been stripped of its electoral symbol for the first time.

Justice Minallah noted that reserved seats were allocated to other political parties without giving proper justification.

ECP lawyer Sikandar Bashir Mohmand argued that the matter concerned the SIC and not the PTI, which he said was not a parliamentary party.

“Therefore, the court’s discussion regarding the deprivation of the PTI of its election symbol (before the elections) is irrelevant.”

He said the ECP had two questions before it in the matter and the primary question was whether reserved seats could be allocated to the SIC or not.

Mohmand said the issue of allocating reserved seats to other parties was secondary.

“However, the court has placed full emphasis on the secondary issue while ignoring the primary issue,” he added.

During the hearing, Justice Shah asked the ECP counsel what would happen if 200 independent candidates won the elections while only a handful of candidates from six political parties also reached an assembly.
Read SIC’s seat reservation application left behind by ECP

“In this case, will the reserved seats also be allocated to the political parties,” he asked.
The ECP’s lawyer replied in the affirmative to loud laughter in the courtroom.

The lawyer said people might laugh at his answer, but that’s what the Constitution says.
“If independent candidates do not join a political party, the seats will be distributed among other parties,” he said.

Mansoor Awan, Attorney General for Pakistan (AGP), said this was a case of first impression involving constitutional issues not previously addressed by the court.

“This is the first case of its kind and Article 51 of the Constitution has not been interpreted so far. It would be better to refer the matter to a larger bench,” he said

When the court stayed the PHC order, the AGP urged that it would be better to leave the matter of the stay order to the larger bench as well.

Justice Mansoor Ali Shah noted that if a stay is granted on appeal, the decision will be stayed. “We grant a stay on the appeal process of the SIC and send it to the SC committee to form a larger bench. We will hear the case daily from June 3,” he said.