CJP says those contesting elections on February 8 could have said they be given ‘bat’ as symbol n Justice Esa says don’t make court to write the C

ISLAMABAD   -   The Supreme Court on Tuesday observed that depriving a political party of election symbol became the root cause of a series of mistakes 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. A Full Court, headed by Chief Justice Qazi Faez Isa, conducted hearing of Sunni Ittehad Council (SIC), Khyber Pakhtunkhwa (KP) government and Speaker KP Assembly’s petitions for not allocating women and minorities reserved seats to it in the National Assembly and provincial assemblies.

During the hearing, the Chief Justice of Pakistan questioned that why did the Pakistan Tehrik-e-Insaf-backed candidate not demand symbol of ‘bat’ for contesting elections on February 8. Faisal Siddiqui, representing SIC, contended that as the SIC did not contest the general elections, therefore, it had not filed the list of candidates for reserved seats of women and minorities. On the other hand, PML-N, PPPP, PML-Q, MQM and other parties filed their lists before the Election Commission of Pakistan.

The Chief Justice questioned that whether there is distinction given in Article 63A of the Constitution about 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 can’t be a parliamentary party, adding that if tomorrow PTI or SIC are at the 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 parliamentary party head can take the action against any member of its party if he does not follow the party policy and vote in budget.

Justice Munib Akhtar asked the SIC counsel to focus on the political party, as the parliamentary party is for the future once the reserved seats of women and minorities are allocated to it and the members take oath. “The focus of our discussion should be the political party,” he emphasized.

Justice Munib then said that independent candidate is the one who has not contested 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 a certain political party then he would be not an independent member but member of that political party. They (candidates) never repudiated PTI, therefore, all those independent candidates who have won election are the PTI members.

The Chief Justice said those contesting elections on February 8, could have said that they be given ‘bat’ as 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 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 ‘bat’ symbol.

Justice Muhammad Ali Mazhar questioned whether the PTI has filed the list of reserved seats, and if they did then why they didn’t challenge this matter before the Election Commission. He said there was no need of declaration when the PTI backed candidates themselves in Form 33 stated that they do not belong to any party.

The Chief Justice said why didn’t they independently demand the ‘bat’ symbol. Faisal Siddiqui replied that if they had done that then it could have been the violation of Supreme Court 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 ‘bat’ symbol was offered to any candidate after the Supreme Court judgment. He said if the ECP had done that then it would have before the apex court in contempt.

The Chief Justice asked that does the SC judgment say that no candidate could be allotted ‘bat’ symbol. The counsel replied no. Justice Mazhar explained that that was not the case of 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 implication if the ‘bat’ was allotted to the candidates. The logic of the judgment is that ‘bat’ symbol can’t 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 that this is disconcerting and inexorable logic that the judgment stopped people from having ‘bat’ symbol. He questioned whether after the election the ‘bat’ symbol was off the book?

The CJP said that the judges take oath on 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 Prime Minister to hold intra-party elections (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.

Chief Justice Qazi Faez Isa made it clear that the Supreme Court will not go for ‘creative interpretation’ of Article 51 of the Constitution. “I would say no to creative interpretation and whatever is written in Article 51 you act in accordance with that,” said the judge.

He continued, “Don’t make us (Court) to write the Constitution, as it is not our job. If there is no solution, then go to the Parliament.” He said that if these 77 independent candidates had not joined the SIC then the PTI could get reserved seats of women and minorities.

Faisal Siddiqui argued that when there is no clear answer given in the Constitution what to do with the leftover seats then in such situation the Supreme Court can solve the problem by issuing a declaration.

Justice Munib Akhtar said that once the ECP has recognized 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.

However, Justice Jamal noted that the people have voted to PTI backed candidates, but were unaware of the SIC, therefore, the party which has not contested elections and has no seat in assemblies the leftover seats should go to those parties which have obtained millions of votes in the general elections.

Later, the bench deferred hearing of the case till June 24.