Women, non-Muslims ‘No allocation of reserved seats to parties that have already availed their share’

ISLAMABAD: Justice Ayesha A Malik said the reserved seats of women and non-Muslims cannot be allocated to the parties which have already availed their share under the proportional representation system.

She inquired about the broader implications of whether the Sunni Ittehad Council (SIC) wins or loses its case, saying how the other political parties would be affected. She reiterated that seats should only be allocated based on proportional representation and cannot be given outside of this principle.

A Full Court, headed by CJP Faez, on Tuesday, heard an appeal of SIC for not allocating women and minorities reserved seats to it in the National Assembly and Provincial Assemblies. Faisal Siddiqui, SIC counsel and Salman Akram Raja representing PTI Women Wing In-charge Kanwal Shauzab have completed their submission.

The chief justice said: “We are so indulgent to autocrat rule but whenever there is democracy in the country and the elected governments formed then we all take out knives. We become attorney general and the minister.”

He was alluding to the General Musharraf’s regime during that Makhdoom Ali Khan became attorney general and one of the members of the bench became minister in Khyber-Pakhtunkhwa.

The CJP said; “Why don’t we follow the constitution and are eager to quote Kelsen’s theory and principles.” “These theories have destroyed Pakistan,” he emphasized.

Justice Faez said “when the constitution is clear then we don’t need to see the jurisprudence and principles of other countries.”

Justice Athar Minallah stated, “today the constitution is not upheld, everyone knows, what happened in the elections. Today this Court should not be seen as complicit. There has to be a resolve that enough is enough instead of burying our heads in the sand.”

He said Pakistan Muslim League-Nawaz (PML-N) and Pakistan Peoples Party (PPP) were affected earlier but the SC did not come forward to their help. “The same things are happening again and another party is the victim,” he said and added that the court did not learn from its history. There would surely come a time in the future when the Supreme Court will regret its decision again, he added. He said that this is the case of first impression.

Makhdoom Ali Khan, who represented some of the MPs who are affected by the Supreme Court’s order, stated the SIC cannot be given the reserved seats as it neither contested elections nor submitted a priority list of women and non-Muslims. He contended that the constitutional scheme excludes the independents from getting the reserved seats, adding there cannot be fresh elections for election of reserved seats of women and minorities.

The chief justice said; “It is not our (judges) job to demolish or build someone’s case, our job is to decide the cases in accordance with the constitution, law and the material placed before us.”

“We can’t re-write the constitution as we have taken an oath to protect and preserve the constitution, therefore, what is written in the constitution we have to abide by that. The document (constitution) needs to be given respect,” he added.

Justice Mansoor responded that there is a need for the understanding of the constitution differently, therefore, there are questions, adding; “I am not saying we re-write the constitution.”

Justice Athar said it has been asked again and again whether it is mandatory to complete the House, and then himself stated; “In my opinion, there is no compulsion that the House has to be complete.” The parties would get only their share of reserved seats and not extra. Makhdoom said that according to his understanding, the seats will be distributed equally among the parties and will not be given to the independents.

The CJP observed that the petitioner before the apex court is only the SIC and no other parties, including PTI or its backed candidates, who won the February 8, 2024 polls. He said if they (the PTI-backed candidates) were aggrieved of any order then why they had not challenged it before this Court.

The chief justice said he would go by the facts, placed before the Court, adding the judges operate on the basis of pleading and not extraneous factors. He said: “In my view, the independents had to remain in PTI instead of joining the SIC.”

Justice Athar asked Makhdoom “don’t you think our job is to protect the rights of voters, and if the citizens were deprived because of the ECP misinterpretation of the judgment. Don’t you think it is our job to look into all these irregularities that were committed. All I think is that there should be some start and correction of the wrong.”

He said the entire issue stemmed from the ECP’s decision to declare PTI candidates as independent, questioning the legitimacy of this fundamental issue.

Copyright Business Recorder, 2024