ECP’s ‘series of errors forced’ PTI-backed candidates to contest polls as independents: Justice Akhtar

As the Supreme Court on Monday took up the case of reserved seats, Justice Munib Akhtar highlighted a “cascading series of errors of law” committed by the Election Commission of Pakistan (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.

He added that 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 Sunni Ittehad Council (SIC).

His remarks came as the full court resumed hearing the SIC’s plea against the denial of reserved seats in assemblies for women and minorities.

The SIC had earlier been joined by PTI-backed independent candidates after they won the Feb 8 elections as their party had been deprived of its electoral symbol ‘bat’ in an SC ruling.

In a 4-1 verdict in March, the ECP had 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”.

The commission had also decided to distribute the seats among other parliamentary parties, with the PML-N and the PPP becoming major beneficiaries with 16 and five additional seats while the Jamiat Ulema-i-Islam Fazl was given four. Meanwhile, the verdict was rejected by the PTI as unconstitutional.

Later the same month, while ruling on an SIC plea, the PHC had dismissed an SIC plea challenging the ECP decision and denied it reserved seats.

On May 6, a three-member SC bench, hearing a petition filed by the SIC, suspended the PHC verdict to the extent of reserved seats distributed over and above the initially allocated ones to political parties.

In accordance with the apex court’s ruling, the ECP had then suspended victory notifications of 77 lawmakers, causing the ruling coalition to lose its two-thirds majority in the National Assembly.

Last week, a full court had been formed to hear the case, comprising all judges except Justice Musarrat Hilali.

During yesterday’s hearing, Justice Mandokhail had noted that the public did not vote for independent candidates but those nominated by the PTI in the February 8 general elections.

Meanwhile, Justice Shah suggested that the controversy could be ended if the ECP gave the formerly independent candidate another three days to decide afresh whether to join another political party.

Today, the 13-member full court — comprising Justices Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Aminuddin Khan, Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan and Naeem Akhtar Afghan — resumed hearing the case.

The proceedings were broadcast live on the SC’s website and its YouTube channel.

Advocate Faisal Siddiqi, representing SIC’s female candidates who were denied the reserved seats, resumed his arguments in the case.

The hearing was then adjourned to 9:30am on June 24, with Justice Shah stating that the counsels of both sides would have two entire days to sum up their arguments in the case.

The hearing

At the outset of the hearing, Siddiqi informed the court that the SIC did not contest the general elections as a party this year, and therefore, did not file a list of candidates for reserved seats.

CJP Isa asked Siddiqi if the Constitution made a distinction between a political party and a parliamentary party, to which the latter replied that Article 63A mentioned so.

Justice Isa then asked who the head of the SIC was, remarking that a “lot will flow from that”. Siddiqi responded that he did not have a name but would specify later, adding that in his opinion, the answer was irrelevant to the case in focus.

Justice Mandokhail remarked that a parliamentary party “legally was not bound to follow the decisions of its chief”.

Noting that Article 51A of the Constitution mentioned political party and not parliamentary, Justice Akhtar said the focus should be whether the SIC was a political party or not.

He observed that a candidate was independent “only if he declared in the nomination paper ‘I do not belong to any political party’”.

Recalling that the PTI-backed candidates went through the scrutiny process and were elected in the February 8 polls, the judge asserted that “all of those persons were PTI returned candidates”.

“How can rule-making power of the ECP […] go against parent statute?” he asked.

To this, CJP Isa responded that then the candidates would be of the PTI rather than independents, and hence could not join the SIC. However, Justice Ayesha said that since the ECP had allowed them to contest, they had then joined a political party (the SIC) as independents.

Here, Justice Akhtar highlighted there was an “intervening event that was the denial of the electoral symbol” to the PTI, adding that the “only possible course was to allocate a symbol not allocated to other parties”.

While Justice Minallah noted that a political party could contest elections as a political party even without a symbol, Justice Akhtar pointed out a “series of cascading series of errors of law” in the ECP’s actions.

The chief justice then asked Siddiqi why the affected candidates did not seek the ‘bat’ symbol as their electoral symbol after the PTI was denied the same. At this, Justice Akhtar remarked that that would have been in violation of court orders.

Here, Justice Rizvi recalled that the PTI wanted the ‘batsman’ symbol — belonging to PTI-Nazriati — asking “what happened with them then”.

CJP Isa then, referring to the Jan 13 order, asked Siddiqi if the judgment stated that “individuals cannot have the [bat] symbol”. At this, Justice Akhtar asked whether the order needed to say so. The SIC counsel replied in the negative to both questions.

Justice Akhtar opined that the “only conclusion is that the election bat symbol is off the book, no one can get it. Full stop. Not in this general election”.

Justice Mazhar — one of the three judges on the bench that restored an ECP order, leading to the PTI losing its symbol — emphasised that the court had stated that the party could approach it again on the issue of reserved seats.

The top judge then remarked that when someone was stated as a PTI candidate “but then joined your party (SIC) then you are not coming as independents but after rejecting that party (PTI)”.

Here, Justice Minallah stressed: “We need to consider the voters’ rights as well […] challenges were faced by one political party — it was complaining of a coercive apparatus of the state in operation and it has not happened for the first time.

“It has been repeatedly happening and every political party has faced it. We may think as if everything is hunky-dory; it is not,” he asserted.

“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.

He added that 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.

Advocate Siddiqi recalled that the election commission had declared PTI candidates independent.

“The court must follow what the law says, not what the ECP says,” Justice Isa remarked, adding that the ECP’s decisions are challenged in court every day.

Here, Justice Wahid inquired whether the ECP’s decision had been challenged, to which Siddiqi replied in the negative, saying the decision was final.

“If the decision was final then what is the point of this discussion?” Justice Wahid asked.

Siddiqi reminded the bench that all problems would have been solved, had the Supreme Court given an explanation for the decision on the bat symbol.

CJP joined the back and forth at this point, saying that there would have been no issue on the bat symbol, had the PTI conducted its intra-party elections.

“Don’t put the blame for everything on this court,” he said.

The chief justice went on to say that the PTI itself had deprived its people of their democratic rights.

“Where was the desire of the voters reflected in these intra-party elections?” the chief justice asked. “If party elections had happened, it would have benefitted PTI members as they would have contested elections.”

“If you want to talk about democracy then make it complete,” Justice Isa stated.

To this, Justice Minallah said: “With all due respect, if everyone starts speaking the truth, it will be very bitter.”

“I speak the truth,” Justice Isa remarked.

Justice Mazhar interjected the conversation to say that a review of the bat symbol verdict was pending. “If you have the entire conversation here, then what will you do over there?” he wondered.

CJP Isa questioned whether the House could be reduced to less than the number of prescribed seats, to which Siddiqui replied that all allotted seats in the House must be filled.

“There’s no need to dramatise in the name of proportional representation,” the chief justice quipped.

“It is up to the party leadership who they give reserved seats to, even if those are friends,” CJP Isa remarked, adding that voters have no role in the matter of reserved seats and that it is entirely up to party leadership.

Here, Justice Akhtar noted that a list should be provided by the political party, not its leadership.

Advocate Siddiqi said that a political party gets reserved seats based on the seats won and not on the votes.

“For a party to participate isn’t it mandatory for it to be in the assembly?” CJP Isa asked.

Advocate Siddiqi replied: “Reserved seats are allotted on the seats won in the assembly. The law talks about obtaining seats, not winning them.”

“True independent candidates will have a good time; political parties just snatch them up,” Justice Akhtar remarked.

The hearing was subsequently adjourned to June 24.