ISLAMABAD   -   Judge of Supreme Court Justice Munib Akhtar Thursday said that anomaly has been created by the Election Commission of Pakistan (ECP) which has declared the Pakistan Tehreek-e-Insaf-backed candidates as independents.

A Full Court headed by Chief Justice of Pakistan Qazi Faez Isa conducted hearing of an appeal of 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, Sikandar Bashir Mohmand, representing ECP, said that the appellant has taken position that they are not the members of PTI, adding that their case is that they are independent and joined the SIC. He said that position taken by some members of the bench would destroy the case of the appellants. The position identified by the bench has created anomaly.

However, Justice Munib stated that the anomaly has not been created by the Supreme Court, but by the Election Commission which has declared them (PTI members) as independents.

When three or four judges at the same time were asking questions from Sikandar, he then said: “When everyone speaks then people are bewildered what the bench is thinking.” He contended that the Full Court is hearing the SIC appeal under Article 185, but I have been asked questions which are not relevant to this case.

The counsel of Election Commission of Pakistan (ECP) presented the list of 81 PTI backed candidates who contested general elections and later joined Sunni Ittehad Council (SIC). He said that only an independent can join the political party in the assembly.

He informed that Sahibzada Hamid Raza’s affiliation ticket was of the PTI but he later contested election as an independent. Justice Muhammad Ali Mazhar said that he (Hamid) made statement on oath that he is candidate of Pakistan Tehreek-e-Insaf-Nazriati.

Sikander told that the last date of final list of candidates was 12-01-24, while the deadline for allotment of symbol was 13-01-24. Justice Jamal questioned that whether before the final date a candidate could withdraw from one party and join another party. The ECP counsel replied that before the allotment of the symbol he can do so.

The court inquired that if the declaration and the party affiliation certificate don’t match that what happens and whether it was the power with the Returning Officer (RO) to declare a candidate an independent. The counsel told that there are consequence of mismatch of the declaration and the certificate.

Justice Naeem Akhtar Afghan said that according to the chart of 81 candidates, provided by ECP, out of 81 candidates 35 left it blank, and some mentioned PTI-N and some wrote PTI in their declaration, adding that while in party affiliation certificate, out of 81 PTI-backed candidates, 65 wrote ‘Nil’ in the party affiliation. He said does it not show the non-seriousness of the PTI members.

Justice Munib inquired when the candidates mentioned in their nomination papers that they belong to PTI then why they were treated as independents. He noted that the declaration and the symbol for contesting elections are different. He said in Serial No.22 of the 81 candidates list, the person throughout the election process kept him as the PTI member, besides that the ECP treated him independent candidate.

Justice Ayesha said that the ECP order dated 22-12-23 created confusion. “You kept them confused,” she added.

Justice Munib Akhtar remarked that the ECP did not eliminate the PTI from the election fray. He said when after the Supreme Court judgment if there was any confusion then it should have approached the President of Pakistan under Section 240 of the Election Act, 2017, for clarification. But the Commission did not consult the President on this issue.

The Chief Justice stated that if the President had not responded or said something else or sat on the request. He said the President, who belonged to PTI, though acknowledged that he is authorised to give date, but did not do so despite the Supreme Court judgment.

Justice Munib said that when the order dated 22-12-23 was passed then whether there was political government or caretaker government? He said that was it as neutral and independent as the Election Commission to hold the free and fair elections.

Justice Athar said: “We recognise the ECP as constitutional body, and when we talk about democracy and election then whether the people of Pakistan expressed their free will on February 8.” He said the bug of misinterpretation of the SC judgment would rest on the Commission.

Justice Ayesha A Malik inquired from the ECP counsel did the ECP check the constitutions of political parties when it was allowing the reserved seats of non-Muslim to them, if not then why did he mention in his reply that the SIC constitution does not allow that non-Muslims can’t become its members. She said did the ECP check the constitutions of other parties regarding this matter.

Sikandar replied that it is very relevant to check the SIC constitution. “As a counsel it came to me to check their (SIC) constitution and I considered it is relevant and pertinent to bring it to the notice of the Court.” Justice Yahya Afridi said: “It makes an effect on me when I read it.”

Sikandar said in lighter note that people says that 81 candidates and the judges think same. He said that the ECP judgment is not absurd because the Peshawar High Court five-member bench upheld it unanimously.

Upon that Justice Mansoor said that the PHC 5-judge bench verdict is not binding on them (SC). He remarked that the party can’t be disenfranchised and the ECP is not realising the impact of the declaring the PTI members as independents. H said whether the ECP deliberated upon the SC judgment or left it to the Returning Officers?

Justice Jamal questioned whether the ECP has power to declare any candidate independent. He said that this is an agreement between the party and its members whether they contest on the party ticket or as an independent. The judge asked what is the effect of affidavit without the withdrawal of certificate.

Later, the bench deferred hearing of the case till Monday (July 01).

APP ads: The chief justice remarked that it was necessary to attach a certificate of party affiliation with the nomination papers from which the election was to be contested. He asked the lawyer to clarify the party affiliation of the said candidate. The ECP’s lawyer said that the candidate’s declaration and affiliation with the party must be shown. “If the declaration and political affiliation do not match, then the candidate is considered as independent.”

The CJP said, “Don’t confuse with the election symbol, why should we not consider them as the PTI candidates. There is no contradiction in the certificate and the ECP is changing the candidate’s status. Why the candidate’s affiliation is not being considered with the party whose certificate is submitted?”

Justice Munib Akhtar remarked that the SC upheld the decision of the ECP regarding the election symbol but it didn’t not order to keep the PTI out of elections.

Justice Athar Minallah asked whether it should be believed that the PTI was ousted from the general elections. Whether the ECP misinterpreted the top court’s decision, he asked.

Justice Munib Akhtar said that the candidate did not declare himself as independent rather it was the ECP which did so. The candidates then wanted to join the party but the ECP raised the objection.

The CJP said that there is a contradiction in the documents submitted by the ECP before the court. How could a candidate’s connection with a party break if he did not get the election symbol, he added.

The ECP lawyer further said that a political party had to win at least one seat in the general election if it wanted to claim reserved seats. The SIC did not won a single seat, while the independent candidates had no affiliation with it, he added.

To a court’s query, he said that the PTI had given a list of candidates for reserved seats but the SIC did not file it. The top court instructed the ECP to produce the PTI’s list for reserved seats on next date of hearing and adjourned the case.