Chief Justice Qazi Faez Isa says independents had to remain in PTI instead of joining SIC. Justice Ayesha A Malik says reserved seats cannot be allocated to other parties contrary to principle of proportional representation. Elections were good if there was no political engineering: Justice Athar.

ISLAMABAD   -   Judge Supreme Court of Pakistan Justice Ayesha A Malik Tuesday said the reserved seats of women and non-Muslims cannot be allocated to other parties contrary to the principle of proportional representation.

A full court bench of the top court headed by CJP Faez conducted hearing on SIC appeal 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.

During the hearing, Justice Athar Minallah stated that today the Constitution is not upheld everyone knows what happened in the elections. He added, “Today this Court should not be seen as the complicit. There has to be resolve that enough is enough instead bury our heads in sand.”

He said that the 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 other 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 said that the SIC cannot be given the reserved seats as it neither contested the election nor it submitted the priority list of women and the non-Muslims.

He contended the constitutional scheme excludes the independents from getting the reserved seats of women and the non-Muslims, adding there can’t be fresh elections for the SIC to elect the women and minorities on reserved seats.

The Chief Justice said; “It is not our (judges) job to demolish or build someone’s case, but our job is to decide the case in accordance with the constitution, law and the material placed before us.” He also said that they can’t re-write the Constitution and as we have taken oath to protect and preserve the Constitution, therefore what is written in the constitution we have to abide by that. He added, “The document (Constitution) needs to be given respect.”

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

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

The CJP observed that the only petitioner before the apex court is the SIC and no other parties including PTI approached this Court and when they were aggrieved of any order they should have challenged it before this Court, but no member except the potential candidate of PTI has filed the petition.

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

Justice Athar asked Makhdoom Ali Khan, who was representing some of the MPs who were elected on the reserved seats of women, that don’t you think that 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 that there should be some start and correct those wrong. He said that the entire issue stemmed from the ECP’s decision to declare party candidates as independent, questioning the legitimacy of this fundamental issue.

The CJP said; “We need to abide by the constitution, and that is my concern.” Justice Athar said the fundamental issue before it the right of the voters and the electoral process. He asked whether there was no political engineering, adding if there were no political engineering then the elections were good. Justice Amin-ud-Khan remarked that they are hearing an appeal under Article 185 of the Constitution.

Justice Yahya Afridi questioned what would happen to the rest of the seats, whether the remaining seats would be left vacant. Makhdoom replied that the remaining seats will be retained between the political parties who have contested the elections and have members in the Assemblies who have won the elections.

Justice Shahid Waheed questioned how the quota of the reserved seats to the parties which already availed their share under proportional representation system could be enhanced. Justice Irfan Saadat said according to the record at one time the independents become the PTI, but filed the tickets of Pakistan Tehreek-e-Insaf. Justice Ayesha Malik noted that the ECP has not filed the complete record.

Justice Munib questioned what was the logic that the Election Commission had gone beyond the law, adding when the independents wrote in their nomination papers that they belong to PTI then it did not allot the ‘bat’ symbol.

Justice Yahya Afridi said if a candidate mentions in his nomination papers that he belongs a to party, but in his declaration write that he is independent but can’t the candidates be forced his mind three days after the elections when the notification is issued.

Justice Jamal said that if a candidate changes his affiliation after the election and join another party then he is disqualified under Article 63A of the constitution. Justice Munib remarked this is an agreement between the two parties, and it has to see the nomination paper which has its party affiliation.

At the beginning of the hearing, Faisal Siddiqui, representing the Sunni Ittehad Council (SIC), stated that Sahibzada Hamid Raza had contested the election independently but had mentioned his affiliation with the SIC in the nomination papers.

Justice Athar Minallah noted that Hamid Raza had indicated his commitment to the SIC in his nomination papers. Justice Jamal Mandokhail added that party affiliation required a party ticket.

Makhdoom clarified that Hamid Raza had submitted a letter stating he did not contest the election under any party banner.

Justice Ayesha Malik questioned why Hamid Raza was prevented from contesting on a party ticket, suggesting the case could take a different turn if confirmed by the ECP. Justice Muhammad Ali Mazhar pointed out that although the SIC had an election symbol, no candidate ran under it.

Later, the court deferred hearing of the case till Thursday (tomorrow).