- Larger bench observes method for a list of reserved seats is not clear in the law
- Only a party that wins in general election deserves reserved seats, AGP Awan tells PHC
PESHAWAR: The Peshawar High Court (PHC) on Wednesday asked whether the Sunni Ittehad Council (SIC) was a political party or not, wondering whether it could take part in the elections for president, Senate, National Assembly speaker and deputy speaker, and if it could have its member made an opposition leader.
The PHC larger bench observed that the “method for a list of reserved seats was not clear in the law,” again asking the Attorney General of Pakistan (AGP) if the SIC was being considered a political party.
The observation was made by the larger bench of the PHC — led by Justice Ishtiaq Ibrahim, and comprising Justices Ijaz Anwar, SM Attique Shah, Shakeel Ahmed, and Syed Arshad Ali, which resumed hearing on the SIC’s petition about the allocation of reserved seats.
Qazi Anwar represented the SIC while Farooq H. Naek was the lawyer for the PPP — a respondent in the case. PPP leaders – Faisal Karim Kundi and Nayyer Bukhari also reached the PHC while Azam Swati was present from the PTI’s side. AGP Mansoor Usman Awan, after failing to appear during the previous hearing, appeared before the court on Wednesday, as well as ECP lawyer Sikander Basheer Momand.
The SIC — joined by PTI-backed independents who won the elections sans their electoral symbol — has challenged 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 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 (today).
The PHC initially rejected Anwar’s request to adjourn the hearing till tomorrow. After the PPP and ECP counsels as well as the AGP presented their arguments, the court sought the same from the SIC lawyer.
However, Anwar said he could present his arguments if given time till tomorrow, at which the court adjourned the hearing till 9am on Thursday (tomorrow).
The hearing
At the outset of the hearing, Anwar began presenting his arguments. He recalled that the PTI-backed independent candidates joined the SIC within three days of their winning notification as per the law.
Justice Ibrahim then asked if any candidate of the SIC had won the election, at which Justice Ali noted that the SIC chief had contested the Feb 8 polls as an independent candidate. Anwar informed the court, “Indeed, none of their candidates won.”
The court asked if the PTI-backed independents had submitted an application before the ECP on February 21 seeking to join the SIC, to which Anwar replied in the affirmative, adding that “most of the candidates had won the election as independents”.
“They joined the SIC as per the ECP’s instructions,” the counsel asserted.
The court then asked when the list of candidates for the reserved seats was submitted to the ECP, noting: “If reserved seats are left vacant, then women and minorities would not have representation in the Parliament.”
The SIC lawyer replied that the application had been filed by PTI’s Ali Zafar and sought more time to prepare his arguments.
At this, the court noted that neither was a plea filed seeking adjournment of the hearing nor was there any report of it. The court observed that only one larger-bench hearing was scheduled for today, adding that it would be an “injustice to the people”.
Anwar again requested that the court adjourn the hearing till tomorrow. However, the PHC refused to do so: “No, it cannot happen that the case be heard tomorrow.” The court observed that the larger bench could not take up cases every day and rejected the counsel’s plea.
“He (Anwar) has not submitted any application. He is a senior counsel; he should not have done so. We have few judges and hear cases for five to six hours each day. The court also has to hear the cases of poor petitioners,” it noted.
Here, PPP counsel Farooq H. Naek informed the court that elections on a few Senate seats were scheduled for tomorrow. The court asked him if his client had “gotten more seats than its share”, to which the lawyer replied, “The Sunni Ittehad Council does not have a right to the reserved seats.”
In his arguments, the AGP said the representation of “mixed members”, including women and minorities, in the assemblies was law.
“The petitioner party did not take part in the general elections,” he stated.
Here, the court observed that the “method for a list of reserved seats was not clear in the law” and asked if the SIC was being considered a political party. To this, AGP Awan replied that it was yet to be reviewed whether the SIC was a political party or not under the “various sections of the ECP”.
“According to the law, if a political party that took part in the general elections or won a seat, then they would be allocated reserved seats,” the AGP told the court. “When a political party wins and then independent candidates join it, only then will it gain the benefit of reserved seats.”
Here, the court asked the AGP: “As per your arguments, is the Sunni Ittehad Council not a political party?”
Awan clarified that political parties were given reserved seats according to their share in the general seats. The court then directed him to present arguments based on Article 51(d) of the Elections Act so that the matter would be “clear”.
It again asked whether the SIC was a political party or not, also wondering whether it could take part in the elections for president, Senate, National Assembly speaker and deputy speaker, and if it could have its member made an opposition leader.
The AGP then responded, “It is law that a political party must win a seat in the general election.” However, the court observed, “Such a case for reserved seats has not been seen. This case is the first of its kind.”
The attorney general reiterated that the reserved seats would be allocated to the party that had its representation in the Parliament. Here, the court noted, “There is also another law that independent candidates may join a party within three days.”
“What will happen if an independent candidate joins a party that does not have representation in the Parliament?” the court wondered, observing that the matter of reserved seats was not taken into consideration when the Elections Act 2017 was enacted.
In response, the AGP contended that changes could be made to the list of candidates for reserved seats but it must be submitted prior to the elections. “A voter casts their vote for a candidate or party considering the list for reserved seats,” he asserted.
Upon the court inquiring about a situation where the list was not submitted by a major party of the country, AGP Awan said, “Every political party submits the list as it is confident that it would secure these reserved seats.”
Here, Justice Ali remarked, “The situation now is that the independent candidates have joined a [political] party.”
The court then gave an example of a party winning 12 general seats and another winning 18. If independents joined the party with 12 seats, then that would become the bigger party, the court said.
AGP Awan argued that in this case as well, the requirement of submitting a list would not be fulfilled. He explained that a party could be allotted reserved seats after independents joined it only if it had already had “any representation in the Parliament”.
In his arguments, the ECP counsel said he supported the AGP’s argument. He said the SIC was not a political party under Section 51(d) of the Elections Act and hence, could not be allotted reserved seats.
“Only a party that contests on its party ticket will get reserved seats,” Momand asserted, adding that SIC chairman Sahibzada Hamid Raza contested the elections as an independent. He said it was necessary for a party to win at least one general seat to deserve reserved seats.
Acknowledging there was a need to amend the laws, the ECP counsel said the current issue shall be resolved according to the present interpretation, urging the PHC to judge whether the interpretation was correct or not.
Justice Ali then stated, “The Parliament did not review the issue you are talking about. For now, no solution to the issue can be seen. Why not refer this issue to the Parliament so that a solution may be found?”
Momand replied that he was answering the questions asked in the SIC’s petition, arguing that there were “clear verdicts” present from the Supreme Court regarding the submission of the list after the deadline.
After the ECP counsel completed his arguments, Justice Anwar remarked, “From your arguments, it seems that you consider it (SIC) a political party but not a parliamentary one.” Momand replied in the affirmative.
Here, Justice Ahmed asked whether the reserved seats could be left vacant, to which the counsel responded that they could not be.
At this point, the PPP lawyer began his arguments. Justice Anwar asked him how many general seats the PPP had won in the province and how many reserved seats it had gotten. Naek replied he did not remember the exact number, adding that he wanted to present his arguments on the matter.
The court then asked if Anwar would present his arguments, to which he replied he could present his arguments if given time till tomorrow. Subsequently, the court adjourned the hearing till 9am on Thursday (today).
