ISLAMABAD: Chief Justice Qazi Faez Isa made it clear that the Supreme Court will not go for “creative interpretation” of Article 51 of the Constitution, and asked the Sunni Ittehad Council (SIC)’s counsel to follow what is written in it. “I would say no to creative interpretation and whatever is written in Article 51; you act in accordance with that.”
“Don’t make us (the Court) write the constitution, as it is not our job. If there is no solution, then go to the Parliament,” he said adding if the independent candidates had not joined the SIC then the Pakistan Tehreek-e-Insaf (PTI) could have reserved seats for women and minorities.
Faisal Siddiqui, representing the SIC, argued that when there is no clear answer given in the constitution what to with the leftover seats then in such a situation the Supreme Court can solve the problem by issuing a declaration.
A Full Court, headed by Chief Justice Qazi Faez Isa, on Tuesday, heard the SIC, the Khyber-Pakhtunkhwa (KP) government, and the speaker KP Assembly’s petitions for not allocating women and minorities’ reserved seats to it in the National Assembly and Provincial Assemblies.
Justice Munib Akhtar said once the Election Commission of Pakistan (ECP) has recognised the SIC as the political party then the proportional seats of women and minorities could be given to it. He highlighted a “cascading series of errors of law” committed by the ECP that forced PTI-backed candidates to take on the garb of independents.
“All of these returned candidates were PTI candidates forced by cascading series of errors of law by the ECP to take on the garb of independents,” Justice Akhtar observed. The matter of reserved seats boiled down to whether they were to be denied those reserved seats simply because now they have taken shelter under the SIC, he said.
The chief justice said: “When we are talking about the ‘cascading errors’ then we would have to go to the genesis of the error.” He said the error started when the PTI leader (Imran), who was the prime minister at that time did not hold intra-party elections (IPEs), despite the Election Commission warning that if the IPEs were not conducted then the election symbol could be taken from it.
The chief justice said it is up to the party leadership who they give reserved seats to, even if those are friends, adding that voters have no role in the matter of reserved seats and that it is entirely up to party leadership.
He said that the will of the people is that they want elections within their parties, which is denied to them by not holding the IPEs. “Democracy and the substantive right should begin within the parties.” When the no-confidence motion was moved, the Supreme Court opened at night. He asked why the courts are not opened for ordinary citizens.
Justice Jamal noted that the people have voted for PTI-backed candidates but were unaware of the SIC; therefore, the party which has not contested elections and has no seat in the Assemblies, the leftover seats should go to those parties which have obtained millions of votes in the general elections.
At the onset of the proceeding, Faisal Siddiqui contended that as the SIC did not contest the general elections; therefore, had not filed the list of candidates for reserved seats of women and minorities. On the other hand, the PML-N, the PPPP, the PML-Q, the MQM, and other parties filed such lists before the ECP.
The chief justice questioned whether there is a distinction given in Article 63A of the constitution between the parliamentary party and the political party. Faisal Siddiqui replied in positive. The CJP said a political party which has no seat in the National Assembly or a Provincial Assembly could not be a parliamentary party, adding if tomorrow PTI or SIC are at loggerheads with each other over the seat of parliamentary party head in the Assembly then there could be a problem.
Justice Jamal Khan Mandokhel questioned why the political party and the parliamentary party are different. He then explained that a parliamentary party head can take action against any member of its party if he does not follow the party policy and vote in the budget.
Justice Munib Akhtar asked the SIC’s counsel to focus on the political party, as the parliamentary party are for the future, once the reserved seats of women and minorities are allocated to it and the members take an oath. “The focus of our discussion should be the political party,” he emphasised.
Justice Munib then said that an independent candidate is the one who has not contested an election on the party ticket and symbol. However, he observed that if a candidate mentions in his form, submitted before the ECP, that he belongs to a certain political party then he would not be an independent member but a member of that political party. They (the candidates) never repudiated PTI; therefore, all those independent candidates who have won elections are the PTI members.
The chief justice said those who contesting elections on February 8, could have said that they be given the “bat” as the symbol.
Justice Athar Minallah remarked that the ECP in its order got confused of Political Parties Order, 2002, with the Election Act, 2017. He said after the Supreme Court’s judgment on 13-01-2024, the election symbols were allotted to the candidate and due to the judgment, the PTI-backed candidates could not have the “bat” symbol.
Justice Muhammad Ali Mazhar questioned whether the PTI has filed the list of reserved seats, and if they did then why not challenge this matter before the Election Commission. He said there was no need for declaration when the PTI-backed candidates themselves in Form 33 stated that they did not belong to any party.
The chief justice said why not they independently demanded the “bat” symbol. Faisal Siddiqui replied that if they had done that then it could have been a violation of the Supreme Court’s judgment. Justice Jamal said if a symbol is not allotted to any party then the candidate who is contesting election independently could demand that symbol.
Justice Munib questioned whether the “bat” symbol was offered to any candidate after the Supreme Court’s judgment. He said if the ECP had done that then it would have before the apex court in contempt.
The chief justice asked does the SC’s judgment say that no candidate could be allotted the “bat” symbol. The counsel replied, no. Justice Mazhar explained that that was not the case of the election symbol but related to the intra-party election of the PTI. He stated that the bench in categorical term had told the PTI lawyers that if they face problem in getting symbol then can approach this Court.
Justice Munib, upon that, remarked that after the judgment there could have been an implication if the “bat” was allotted to the candidates. The logic of the judgment is that “bat” symbol cannot be given to any candidate.
The chief justice reacting to that said where it is written that the independent candidate could not have the “bat” symbol. He said this is disconcerting and inexorable logic that the judgment stopped people from having the “bat” symbol. He questioned whether after the election the “bat” symbol was off the book.
The CJP said that the judges take oath on the text/ letter of the constitution and not on the logic of the constitution. He said the ECP told the PTI leader (Imran), when he was the prime minister to hold IPEs, and warned that if the IPEs were not conducted then the election symbol could be taken from it, despite warning IPEs were not held. The case was adjourned until 24th June.
Copyright Business Recorder, 2024
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