By Qamar Bashir
The entire proceeding of the Supreme Court on the Sunni Ittehad Council’s
petition seeking the allocation of reserved seats for women and minorities in the
National and Provincial Assemblies seemed like a clash between the Chief Justice
and the rest of the bench. The Chief Justice used the strength and power of his
argument to assert that PTI's failure to conduct intra-party elections was the root
cause of their predicament. Consequently, all actions taken by the Election
Commission and the subsequent Supreme Court decision to deprive PTI of the
BAT election symbol were seen as the party's own fault. The Chief Justice argued
that PTI should accept the repercussions of their mistakes.
During the hearing, a stage was reached where the Chief Justice seemed
completely cornered by his fellow judges. The brother judges negated the Chief
Justice's interpretation of his own judgment. The Chief Justice maintained that
even when PTI was deprived of the BAT symbol, individual candidates could have
demanded it as their election symbol.
The majority of the judges argued that if BAT were allocated to any party or
independent candidate, it would have resulted in a contempt of court case. Justice
Munib was particularly incisive, categorically stating that, according to the
Supreme Court judgment and contrary to what the Chief Justice was now arguing,
the BAT symbol was off the list for this general election.
An interesting scenario was painted by a brother judge: the Election Commission,
knowing that the SIC did not contest the elections and recognizing that all
independents who joined the SIC belonged to PTI, implicitly recognized the
existence of PTI. Therefore, the EC should have allocated the reserved seats to
PTI, effectively removing the SIC from the picture.
A recurring question was whether the SIC contested the elections, to which the
answer was a resounding no. This led to heated arguments about how a party that
did not contest the elections could claim reserved seats. Without giving the lawyers
a chance to address this question, one of the brother judges provided a prompt
answer saying that according to a notification from the Election Commission, the
SIC was accepted as a registered political and parliamentary party on February 22,
2024, having won 82 seats. Therefore, as per the constitution and the Election Act,
the independents who had joined the SIC within three days under Article 51 of the
constitution were entitled to claim reserved seats for women and minorities in the
National and provincial assemblies.
The lady lordship raised another pertinent question: if independent candidates,
other than those of the SIC, have joined parties other than PTI, then why have the
independents of PTI who joined the SIC not been accepted so far? Another brother
judge raised an equally important question, noting that the ECP first declared the
SIC a parliamentary party and asked PTI's independents to join, which they did
within three days, the ECP turned around and stated that since the SIC does not
qualify as a political party, it cannot be granted the reserved seats.
The question of proportional representation was raised repeatedly. One argument
was that, under the constitution, the allocation of reserved seats must be based on
the seats won and secured in the national and provincial assemblies. Thus, they can
only be allocated based on seats won, and independent candidates must join a
political party within three days of the election to claim reserved seats. However,
this argument was deeply contested by the Chief Justice, who believed that, as per
the constitution, the National Assembly would only be considered complete when
all reserved seats are allocated to political parties. According to him, independent
candidates, regardless of their number, cannot claim reserved seats. The Chief
Justice argued that candidates contest elections based on their party's manifesto,
and if they join another party with a different manifesto, it disrespects the people's
mandate. However, the brother judges refuted this, arguing that it would be a
greater crime to disrespect the people's mandate by failing to distribute reserved
seats proportionally based on seats won or secured.
Justice Athar Minullah interjected with a broader philosophical view, stating that
the biggest stakeholders in this case are the public and the voters, who cannot be
disenfranchised. He emphasized that it was the duty of the Election Commission to
ensure this right under Article 70 and that the EC should have rectified its mistake
by itself, instead of depriving the people of their rights.
He further argued that instead of protecting their rights to vote, these very voters
were intimidated and harassed, and one political party was singled out. The state's
brute power was employed to crush the party and its leadership, depriving it of a
free hand and level playing field to contest the elections. It was argued that since
voters have the fundamental right to cast their vote according to their conscience,
and political parties have the right to contest elections in a fear-free environment,
both of these rights were violated. Therefore, the Supreme Court, as the guardian
of fundamental rights, should play its role in rectifying the wrong done to both the
voters and the political party. However, this line of argument was brushed aside by
the Chief Justice, who interjected that the bench had to confine itself within
constitutional limits and should not indulge in endless discussion.
One stark reality that emerged from the two days of highly contested hearings was
the Supreme Court's misconstrued judgment, authored by the Chief Justice, which
deprived PTI of its election symbol. This forced PTI candidates to contest elections
as independents, causing the party to lose significant political capital. It made it
difficult for candidates to launch effective election campaigns and created
confusion among voters trying to identify PTI candidates. Furthermore, the process
of allocation of reserved seats was seen by almost all the brother judges to be full
of errors, omissions, and faulty conclusions. One of the judges even stated that the
Supreme Court should not rubber-stamp the cascade of errors and omissions made
by the Election Commission. However, the Chief Justice countered by asserting
that everything could have fallen into place if PTI had conducted intra-party
elections.
After diligently and carefully observing both sides, one can predict the upcoming
judgment. The court may decide to allocate the share of the reserved seats in both
the National and Provincial Assemblies to the SIC after taking them back from
other political parties. Another likely scenario is a split verdict from the full bench,
which may restore PTI as a party in the National and Provincial Assemblies and
allocate the reserved seats to it. A third, extremely unlikely scenario would be to
uphold the decision of the Election Commission and maintain the status quo.
