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The Peshawar High Court (PHC) dismissed on Thursday the Sunni Ittehad Council’s (SIC) plea challenging the Election Commission of Pakistan’s (ECP) decision to allocate reserved seats for women and minorities in the National Assembly and provincial legislatures meant for it to other parties.
In a 4-1 majority verdict, the ECP, on March 4, dashed the PTI-backed SIC’s hopes for a seat quota, citing “non-curable legal defects” and a violation of mandatory provisions in submitting party lists for reserved seats.
The plea was heard by a five-member bench consisting of Justice Ishtiaq Ibrahim, Justice Ijaz Anwar, Justice SM Atiq Shah, Justice Shakeel Ahmed, and Justice Syed Arshad Ali.
On January 13, the Supreme Court issued an order that came with profound consequences, as the apex court declared PTI’s intra-party elections illegal, leaving the party deprived of its election symbol. This compelled the PTI candidates to contest the February 8 general elections as independents, and losing the opportunity to claim reserved seats.
A day earlier, Attorney General for Pakistan (AGP) Mansoor Usman Awan informed the PHC bench that the SIC did not contest the February 8 general elections, hence, it could not be allotted the reserved seats as per the law.
Representing the petitioner, Qazi Mohammad Anwar Advocate informed the court that senior lawyers Barrister Ali Zafar and Babar Awan would present arguments. Meanwhile, Anwar provided background information on the case.
Justice Ibrahim inquired whether any SIC candidate was successful in the February 8 election, to which Anwar replied in the negative. Justice Arshad noted that even the SIC chairman contested the election as an independent candidate.
Subsequently, the court directed AGP Awan to present his arguments. The AGP defended the ECP’s decision, stating that the SIC had not submitted any list for the allocation of reserved seats before the election, which was a mandatory requirement under the law.
Responding to a query about redistributing the seats to other parties if not allocated to the SIC, the AGP asserted that parliament would be incomplete without the allocation of those seats, emphasizing the importance of representation for women and minorities.
Today’s hearing
During today’s hearing, PTI counsel Barrister Ali Zafar said that it was for the first time in the country’s history that such a large number of independent candidates were successful in a general election. “Our party won 86 seats in the National Assembly, 90 in K-P, 107 in Punjab, nine in Sindh, while one member of the SIC joined us in Balochistan.”
He argued that the SIC was entitled to 78 seats, adding that the party’s case was limited to the NA and K-P Assembly. The PTI counsel maintained that the SIC was eligible to be allotted 26 reserved seats in K-P, and eight in the NA as per its win quota in K-P.
Read Fate of reserved seats faces legal maze
Zafar further stated that some political parties requested the ECP to allot the vacant PTI reserved seats to them, “just as if it was some unclaimed piece of land and someone occupies it”.
Justice Ibrahim said to the PTI counsel’s emphasis was on the “occupation” even though the decision to give the other parties those seats came from the ECP.
The PTI counsel argued that a political entity remains a party even if it does not contest elections. “It is not necessary for it to contest elections,” he said. Zafar added that the SIC has an electoral symbol and is eligible to contest elections. After becoming a political party, the entity attains the rights available to parliamentary parties under Article 17.
Zafar referred to the Chaudhry Pervez Elahi case where the court elaborated on the definition of a political and parliamentary party. He also cited the example of the Balochistan Awami Party (BAP), also allotted seats in the 2018 elections.
At this point, Justice Ali said to the PTI leader that the difference between the SIC and PTI was that the latter did not have a symbol and the former did, but both of them did not participate in the elections. “When joining the SIC you knew that they have also not submitted a list. Reserved seats are given only when political parties win seats. The SIC has not won any seats,” the judge maintained.
He added that the word “secure” has been used in the law, stating that the SIC has not “secured” any seats. “Can independent candidates join a party that has not won any seat?” the judge questioned.
“Have you not weakened your case by joining the SIC?” the judge further asked. Justice Ali added that the PTI had time to hold intra-party elections even after the SC’s decision, but it did not.
Barrister Zafar replied to this stating that the party has conducted intra-party elections anew, but the ECP has not yet accepted them.
Justice Ibrahim inquired why other parties could not be given the reserved seats if the SIC was not allotted any.
Justice Anwar added that the law states that candidates who participate in elections will get the seats, not that a political party that did not participate in polls will after independents join it after elections.
The ECP counsel said the BAP has no involvement in the matter and the petitions being heard in the court are related to the issue of specific seats in the assembly, which “are outside the jurisdiction of this court”.
“The petitions in the Sindh High Court are similar, and the petitioner is the same,” added the electoral watchdog’s counsel.
Additional Advocate General Mubashir Manzoor argued that after the PTI-backed independent candidates joined the SIC, it too became a parliamentary party. “The definition of a political party says that it should have taken part in elections, not that it should have taken part in the most recent elections.”
The AAG added that even if the SIC has taken part in the elections or earlier, it will still be considered a political party.
Following the conclusion of arguments, the bench initially reserved its verdict, announcing it a while later.
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