GP Short Notes

GP Short Notes # 923, 13 July 2024

The Supreme Court on the Reserved Seats: Key Takeaways of the Verdict

On 12 July, a 13-member bench of the Supreme Court delivered its verdict in the case pertaining to appeals filed by the Sunni Itehad Council (SIC) against the earlier judgment of the Peshawar High Court (PHC) which had denied the SIC party reserved seats for women and minorities in the National and provincial assemblies. In its 8:5 majority decision, the court set aside the PHC judgment of 25 March and declared the ECP order of 1 March to “be ultra vires the Constitution, without lawful authority and of no legal effect.” Those judges in favor of the decision argued that “the lack of denial of an election symbol does not in any manner affect the constitutional and legal rights of a political party to participate in an election (whether general or bye) and to field candidates.” They also emphasized that “the ECP is under a constitutional duty to act and construe and apply all statutory provisions, accordingly.” Despite some disagreements on other fronts, all 13 judges agreed that PTI was “a parliamentary party.” The decision has generated much debate within political parties and establishment, legal circles and the media. Following are key takeaways of the judgment:
 
First, PTI is set to become the largest party in the National Assembly (NA). Currently, the total number of PTI lawmakers in the NA including the PTI-backed candidates who had joined the SIC is 92. Once the Supreme Court judgment is implemented and PTI’s share of 22 (19 women and three minorities) reserved seats is allocated, their number in the national assembly will surge to 114.The total strength of the opposition in the NA will also increase from 103 to 125 once the seats occupied by JUI-F (8), PkMAP (1), BNP-M (1) and MWM (1) is added to the PTI’s. Even though the ruling coalition of PML-N and PPP will remain in majority with a total of 209 seats, increase in PTI’s seats will have major two major implications: the ruling coalition will lose its two-thirds majority in the house, a requirement for constitutional amendments and the position of the opposition in the NA will be strengthened.
Second, there will be no potential impact on Senate Elections. Senate Elections were held in three provincial assemblies in April. Both constitutional and legal experts have argued that the apex court’s order will have no impact on the outcome of the senate elections held in April as the judgment has been “declared effective from May 6.” Further, in the appeal filed by the SIC in which the current judgment has been delivered, the senate elections had not been challenged and the matter did not come up even during the hearing. Further, after the senate elections in Khyber Pakhtunkhwa, PTI’s seats in the upper house are expected to increase to 28, making it the “single largest party” in the upper house as well.

Background to the Case
The legal roots of the SIC seat reservation case go back to before the 8 February general elections. The Pakistan Tehreek-e-Insaaf was denied an election symbol by the Election Commission of Pakistan. Despite this being the case, the PTI candidates participated independently and over 80 candidates emerged victorious. Consequently, on 21 February, almost all independent candidates of the PTI submitted affidavits to the election commission to join the SIC. Unfortunately for the newly formed PTI-SIC alliance, the ECP rejected the SIC’s application for its share of reservation in the parliament citing “procedural lapses and the party's failure to submit a mandatory list of candidates,” on 4 March.
 
On 6 March, the Peshawar High Court had reserved its verdict on a petition filed by the SIC and PTI, challenging the ECP’s decision of barring the party allocation of reserved minority seats. The ECP issued a single verdict in its decision stated that the SIC was unable to claim its quota because of “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.” This verdict was rejected by the PTI. However, at the same time, the SIC’s share of reserved seats were distributed among other parties, including the PML-N and the PPP. The court stated “respondents’ number five to 22 shall not be administered oath by the Speaker National Assembly,” till 7 March. On 7 March, a five- member bench postponed the hearing till 13 March.  
 
On 8 March, SIC chairman Sahibzada Amir Raza through Advocate Ishtar A Khan filed a writ petition at the Lahore High Court. It argued that the ECP “misconstrued and misapplied” the provisions of Articles 51 and 106 and section 104 of the Elections Act 2017. The petitioner called upon the court to set aside the ECP decision and order allocation of reserved seats to the SIC because it was a duly enlisted political party and had been enlisted as a political symbol. 
 
On 13 March, the Attorney General for Pakistan, Mansoor Usman Awan, stated that “a political party could get reserved seats only if it won a general one.” ECP counsel Sikander Basheer Momand stated that the SIC was “a political party but not a parliamentary one.” Supporting Awan’s statement, the PTI’s lawyer, Ali Zafar, was of the opinion that the SIC should have been allotted 78 seats as stated “under Article 104’s section (c) of the Election Act.” Instead, the SIC’s reserved seats were “given to occupier groups.” He defended the SIC by stating: “The SIC did not contest the elections but this is not necessary. Boycott is also a part of the elections.” He added that the ECP is “confused at differentiating between a parliamentary party and a political one.” Thereafter, Justice Ishtar Ibrahim declared that the Parliament would be “incomplete” if these seats were not allocated. Zafar insisted that this was the reason why the Judiciary was asked to “interpret the Constitution in a manner so that this vacuum is not created.” Thereafter, the PHC reserved its verdict on the issue. On the same day, the Lahore High Court “turned down” the SIC’s plea. 
 
In April, a petition filed by SIC Chair, Sahibzada Mohammad Hamid, through senior lawyer Faisal Siddiqui, sought to set aside the PHC verdict. On the other hand, the speaker of Khyber Pakhtunkhwa, Babar Saleem Swati filed a review petition in the PHC, against its verdict, which ordered him to “administer oath of office to members of the provincial assembly, belonging to SIC’s opposition parties,” on 1 April. The Supreme Court suspended the PHC’s order upholding the ECP decision to the extent of the remaining seats given to other parties.” An order issued by a three- judge bench observes that the questions pertaining to the allocation of reserved seats have aroused the “foundational constitutional concept of a parliamentary democracy that the voice of the electorate is truly reflected in the composition of the assemblies.” 
 
It mentioned that the court had granted leave to further examine the issue and the appeals would be heard on 6 June. The order further stated: “Since the questions under consideration require constitutional interpretation, the matter be placed before the committee under Section 4 of the Supreme Court (Practice and Procedure) Act, 2023 for constitution of a larger bench to hear the appeals.” A full 13-judge full court bench headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa was constituted to hear the case from 3 July. 
 
On 9 July, Justice Athar Minallah opined that the constitution was based upon the idea of “self- governance”, which entails “the most important pillar, the right to vote. He was curious as to why the “ECP was shying away from showing bona fide that the commission did its best to hold the elections in a fair manner.” In his view, the “real stakeholders” were the people who voted for a “major party” and later “excluded from the political process, pointing out that this was an issue of fundamental rights and not just the rights of one party.” Later, Justice Syed Hasan Azhar Rizvi asked senior counsel Faisal Siddiqui representing SIC to clarify whether “the Constitution allowed allocation of the remaining reserved seats to other parties in the Parliament,” to which the latter responded, negative, saying it could not be done.
 
On 12 July, the apex court decided that the PTI was eligible for the reserved seats in the National Assembly in an 8-5 majority verdict. It declared the PHC’s judgement and ECP’s ruling against PTI as void.
 
Responses from Legal Experts
The judgment has polarized legal experts on the matter. Those in favor of the judgment are of the opinion that the decision has “rectified the ECP’s errors, is a corrective measure to prevent political victimization, and respects the will of the voters.” Those against have argued that “the verdict is controversial and complicates matters” as the PTI, who was even a petitioner became the “subject of the verdict.” Law Minister Azam Nazeer Tarar spoke to the media after the verdict and stated that “there are constitutional and legal flaws in this verdict that will remain under discussion.” Former Attorney General for Pakistan Ashtar Ausaf told Geo News after the verdict that it was the SIC who had filed an appeal and not the PTI and the judgment in favor of PTI has complicated the matter further. Similarly, Supreme Court advocate Hafiz Ahsan Ahmad Khokhar argued that “the court exceeded its jurisdiction and the mandate given by Article 185 of the constitution.”  On the contrary, High Court advocate Hassan Abdullah Niazi spoke in favor of the verdict and told The News International that “constitutional cases like this are about balancing the text of the law with the spirit of democracy. In that sense, I believe the majority’s decision is the most balanced and reasonable conclusion to rectify the ECP’s errors and uphold the will of millions of voters in favor of a political party.” Similarly, Barrister Rida Hosain emphasized that “the majority decision is entirely correct and preserves the people’s will.”
 
Reactions in the Media
The News International
On 13 July, an editorial in The News International titled “
PTI’s big win” termed the Supreme Court verdict in the SIC case as “a monumental legal victory for the Pakistan Tehreek-e-Insaf (PTI).” This is because the apex court ruled that the PTI is entitled to its reserved seats. The editorial also argued that the verdict is not just about a win for the PTI as it fundamentally reshapes “the political landscape.” In this context, the editorial referred two other major ramifications following from the judgment: increased pressure on the coalition alliance due to a “formidable opposition” and altered composition of the National Assembly. The editorial throws light on some of the responses from various sections of the country: While the PTI has “hailed this as a victory” as its status as a political party has been “reaffirmed,” the federal government ministers have argued that “the top court has rewritten the constitution” as the judgment veers away from a “plain reading” of the constitution. The verdict has infused hope among the legal analysts and experts that the apex court will not “bow down to any pressure.” Amongst the “naysayers” are critics who have pointed out the “confusion inherent in the verdict.” During this time of change, the editorial has suggested that “all stakeholders must prioritize dialogue, cooperation, and respect for legal processes.”
 
Dawn
On 13 July, an editorial in Dawn titled “
Injustice undone” explained the Supreme Court judgment as follows: “it was the PTI, not ‘PTI-backed independents’, which won the most seats in the Feb 8 general election.” Terming the judgment as
“a stunning reversal of fortunes” for the PTI, the editorial clarified that the party will now be able to claim its share of reserved seats and be “restored as a lawful political party in the national and provincial assemblies,” Describing the stripping of PTI’s election symbol and subsequent denial of reserved seats to PTI-independents who had joined the SIC as “historic injustice,” the editorial emphasized that “restorative justice” has been done through the apex court’s order. The editorial also suggested that the decisions of the ECP had been “reprehensible” and against the “principles of proportional representation.” The editorial also highlighted the “blatant engineering” of the 8 February General Elections and suggested that the government and establishment not obstruct in the way of implementation of this ruling.
 
References
PTI’s big win,” The News International, 13 July 2024
Sohail Khan, “
Eight SC judges throw their weight behind PTI
Court set aside PHC judgement,” The News International, 13 July 2024
Asim Yasin & Mumtaz Alvi, “
It’s a victory of truth, justice: buoyant PTI celebrates,” The New International, 13 July 2024
Muhammad Anis, “
PTI largest party in NA after SC decision,” The News International, 13 July 2024
Zebunnisa Burki, “
Judicial overreach or justice served? Legal experts on SC verdict,” The News International, 13 July 2024
Injustice undone,” Dawn, 13 July 2024
Iftikhar A. Khan, “
PTI to emerge as largest party, rulers lose two-thirds majority,” Dawn, 13 July 2024
Nasir Iqbal, “
SC gives PTI its groove back,” Dawn, 13 July 2024
Amir Wasim, “
Ruling has no impact on Senate elections held in April, experts say,” Dawn, 13 July 2024

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