Chief Justice of Pakistan Qazi Faez Isa comes to ECP’s rescue on reserved seats

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Chief Justice of Pakistan (CJP) Qazi Faez Isa comes to ECP’s rescue on reserved seats​

Nasir Iqbal
July 2, 2024

• Top judge notes court can only intervene if commission crosses constitutional boundaries
• Says apex court won’t review conduct of polls unless it is presented with specific case concerning rigging
• SC asks ECP to calculate reserved seats with and without independents, to understand impact on election results

ISLAMABAD: Amid intense questioning, Chief Justice of Pakistan (CJP) Qazi Faez Isa came to the rescue of the Election Commission of Pakistan (ECP) on Monday by reminding that the commission was not a subordinate institution to the Supreme Court or the government but an independent authority conferred with a constitutional role to conduct elections.

The Supreme Court can only exercise its jurisdiction if it is convinced that the commission has gone beyond its constitutional role, the CJP highlighted, pointing out that ideally, all institutions should function within their own prescribed domain. The CJP was heading a full court of the Supreme Court hearing a set of appeals by the Sunni Ittehad Council (SIC) against the denial of reserved seats to women and non-Muslim candidates.

The Supreme Court ordered the ECP to do a calculation by applying the formula of allotting reserved seats among political parties on the basis of the election results of 2018 by excluding, as well as including, independents to understand the difference. The bench intends to understand the actual calculations of allocation of reserved seats applied to the results of the Feb 8, 2024, elections.

“Unfortunately, we go to the minutest of details as if we are sitting as an appellate court of ECP,” the CJP regretted, adding that unless the Supreme Court was seized with a particular case regarding actual rigging in elections at the lower level, the apex court could not review the conduct of the elections.

 

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Not one election in the country has ever been accepted or got popular approval since the losing parties have always painted elections as sham or riddled with rigging because we don’t respect the institutions, Chief Justice Isa regretted.

Unlike judges, who were appointed by the Judicial Commission of Pakistan, the CJP reminded, the heads of the ruling and opposition parties in parliament appoint the chief election commissioner after consultations.

“We may have differences with the conduct of the commission, but we will interfere only when ECP deviates from the Constitution and the law,” the CJP emphasised, adding the Constitution was written for the people of Pakistan and not for lawyers or judges. Judgements should be written in a way that even a matriculation student could understand them.

During the hearing, Justice Athar Minallah observed that the entire premise of Article 51 of the Constitution was political parties, but the real question that needed to be addressed was whether the ECP, on the basis of misinterpretation of some judgments (Jan 13, 2024 judgment on denial of common election symbol bat to PTI), and eliminate a political party from the elections.

The calculation of the party position, Justice Minallah said, would come later but the fundamental question in the entire case was the act of ECP of eliminating a major political party.

Justice Ayesha A. Malik regretted that it appeared as if the formula to allocate reserved seats has been left at the hands of ECP to do as they choose by declaring some as independents and others as political parties because that’s what the court had been hearing for the last few days.

Attorney General for Pakistan (AGP) Mansoor Usman Awan replied the point of view of the petitioners was that since they have joined a political party (SIC) therefore that it should be treated as a political party and be allotted reserved seats.

 

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ECP’s arguments

Earlier, ECP lawyer Sikandar Bashir Mohmand argued that the party affiliation certificates as well as the list of candidates for the reserved seats under Section 66 of the Elections Act 2017 were signed by Gohar Ali Khan as the PTI chairman. But then ECP did not recognise the organisational structure of the party on account of the PTI not having conducted intra-party elections in accordance with Section 208 read with 209 of the Elections Act.

The counsel conceded that the dates of party affiliation certificates furnished by SIC candidates were Jan 13, 2024, though not all certificates were issued on the same date. Therefore the certificates were defective and void and had no sanctity in law, he said.

The ECP order against the PTI was issued on Dec 22, 2023, the counsel said, adding the Peshawar High Court (PHC) by upholding ECP’s decision of denying the election symbol came on Jan 10, 2024.

Referring to Sahibzada Hamid Raza, the counsel said that admittedly being chairman of SIC, he should have opted to issue an SIC party affiliation certificate to himself and upon issuing the certificate could have contested the elections as a SIC candidate.

Had this been done and had he won the elections, the requirement of ECP for having elected to least one seat in the general elections would have been met. But for reasons best known to him, this was not done, said the counsel.

Justice Malik referred to the application filed by Advocate General Khyber Pakhtunkhwa that ECP allocated reserved seats to the Balochistan Awami Party in 2019 when the party neither contested the polls from Khyber Pakhtunkhwa nor submitted a list of candidates for the reserved seats for women.

The counsel highlighted that the decision was made in view of the peculiar situation after the 25 Amendment when the ex-Fata areas were merged with KP.

At this Justice Malik regretted that ECP was taking decisions on the basis of understanding of the laws as it chose to understand the laws. There must be some consistency, Justice Malik said, adding it seems the commission was pulling something out of a hat.

The counsel however said that the decision was per incurium and there was no detail to this decision.

PTI Chairman Gohar Ali Khan said he had filed two nomination papers one as an independent candidate and the other as a PTI candidate. He claimed that ECP had concealed the majority of the records from the court, he said.

Published in Dawn, July 2nd, 2024

 

[Erroroverload!]

he has sold his soul to establishment. devastating times ahead for the nation.

 

[ghazi52]

Corruption at extreme level . So many here will justify them.
No care for Pakistan.

 

[ghazi52]

ECP misinterpreted SC order, denying 'Bat' symbol to PTI: Justice Minallah​

"Do you want us to revive the doctrine of necessity?" Justice Mansoor Ali Shah during hearing on reserved seats case

Correspondent
July 02, 2024

A larger bench of the SC reads out its verdict in the Zulfiqar Ali Bhutto presidential reference. PHOTO: Supreme Court of Pakistan


Supreme Court Justice Athar Minallah has said that the Election Commission Pakistan (ECP) misinterpreted a previous court decision, and had denied the 'Bat' symbol to the Pakistan Tehreek-e-Insaf.

He made the statement on Tuesday during the hearing regarding the seats reserved for women and minorities, brought forward by the Sunni Ittehad Council (SIC) that is being heard by the full court, led by Chief Justice Qazi Faez Isa.

Justice Minallah went on to ask the ECP counsel whether the judiciary should endorse an "unconstitutional interpretation by a constitutional body?"

The Election Commission of Pakistan (ECP) on December 22, 2023 stripped the PTI of its election symbol in view of irregularities in its intra-party polls.

The Supreme Court on January 13 upheld the ECP order, forcing the PTI candidates to contest the February 8 general elections as independents.

Today's hearing began with Attorney General Pakistan (AGP) Mansoor Usman Awan presenting his arguments.

Awam told the court that he had received records on reserved seats, dating back to 2002 and 2018.

He highlighted that in 2002, Article 51 governed the allocation of ten non-Muslim reserved seats. In the 2002 National Assembly, after excluding 14 independent members, reserved seats were distributed among two political parties.

Moving to 2018, he noted there were 272 full seats with elections for three postponed and 13 independent candidates elected, nine of whom later joined political parties.

Reserved seats, according to the constitution, are allocated to political parties based on their election results.

The AGP clarified that parties qualify for these seats only if they win at least one seat.

Responding to Awan's explanation, Justice Minallah questioned, "Attorney General, you have not answered the fundamental question. The Election Commission excluded a political party from the elections. If the Election Commission took unconstitutional actions, is it not the judiciary's responsibility to correct it?"

"A party's voters were excluded from the electoral process. The constitution is based on democracy," the judge commented.

Awan responded that according to the constitution, a seat cannot be left vacant under any circumstances.

Justice Mansoor Ali Shah remarked that the issue of independent members never came before the court previously.

"Because the number of independent[candidates] is very high, the case has also been brought," Justice Shah noted.

The AGP reiterated his point and stated, "The constitution is clear that reserved seats cannot be left vacant."

"If 120 days remain until the assembly's term ends, the constitution states there is no need to hold elections," he explained.

Justice Muhammad Ali Mazhar inquired if there was any mention of the consequences of keeping independents separate from political parties.

In response, the AGP told the court that approximately 33% of members of the current assembly are independents.

Justice Mazhar said, "I am limiting myself to the original language of sub-clause 6 of Article 51."

Justice Minallah added, "The Election Commission excluded a political party. Is it not the Supreme Court's constitutional responsibility to consider the constitutional violation?"

Awan mentioned that this question was also raised in the previous hearing, ading that he would provide arguments on Article 187 towards the end of his arguments.

The AGP then reaffirmed that the constitution clearly states that reserved seats cannot be left vacant. If 120 days remain until the assembly's term ends, there is no need for elections.

"Political parties are the foundation of parliamentary democracy. This time, the number of independents is very high. The question is, where did these independents come from?"Justice Muneeb Akhtar noted.

"This situation arose due to the Election Commission's error. The Election Commission misinterpreted the Supreme Court's ruling. If alternative methods exist, corrections should be made. The constitution implies that seats cannot be left vacant," the judge added.

Awan responded that the primary engine is political parties.

Justice Akhtar, while citing Article 51 D stated, "Proportional representation means that public representation should be reflected."

The court highlighted the significant number of independents resulting from the ECP's error and questioned whether the Supreme Court should correct this mistake.

He inquired whether the public had chosen these candidates as independents or if the Election Commission had declared them so.

"Should the legal option to correct this mistake not be adopted?

Chief Justice Isa remarked, "Has any party stated that seats should remain vacant? Every party argues that the seats should be given to them. Why are we spending time on an issue that is not before the Supreme Court?"

Awan mentioned that Faisal Siddiqui had said that if the Sunni Ittehad Council did not receive seats, they should be left vacant.

CJP Isa reiterated, "I am repeatedly referring to the words written in the constitution. If the constitution does not mention this situation or has an error, that is for the constitution and legislators to address."

Awan argued that for a parliamentary party to exist, a political party must win seats in the elections and said that a parliamentary party comes into existence after its members take the oath.

Justice Akhtar stated that the example of a parliamentary party was irrelevant as the matter pertained to pre-election issues.



Justice Shah asked where the formation of a parliamentary party is mentioned in the constitution.

Awan clarified that the parliamentary party is only mentioned in Article 63 A, which requires the existence of a parliamentary party for its application.

Justice Jamal Mandokhail added, "Decisions within the parliament are made by the parliamentary party, not the political party."

The AGP reiterated that independent candidates cannot join the parliamentary party, and a parliamentary party requires a political party to have won at least one seat.

Justice Shah questioned whether the ECP had recognised the SIC as a parliamentary party.

Awan responded that he was not aware of the ECP recognising the Sunni Ittehad Council as a parliamentary party.

Justice Ayesha Malik asked if the SIC was currently a parliamentary party or not.

The chief justice interjected, questioning the relevance of whether it was a parliamentary party or not.

Justice Malik pressed on, asking how recognising a party as a parliamentary party would not make a difference.

Faisal Siddiqui presented the notification of Zartaj Gul's appointment as the parliamentary leader.

Siddiqui stated that the notification was issued by the National Assembly Secretariat, and on April 25, the ECP issued a notification about the inclusion of independent candidates and party positions.

The ECP's response also acknowledged the inclusion of members in the Sunni Ittehad Council.

Justice Akhtar noted that the presented documents introduced a new perspective because according to them, the ECP, in fact did recognise members as part of the SIC

He questioned whether it was contradictory for the electoral watchdog to initially not recognise the SIC as a political party while later acknowledging its members.

Chief Justice Isa inquired about the status of the notification.

He questioned how a letter from the deputy registrar could be considered the SC's stance.

Justice Akhtar asked how official communication from the ECP could be ignored.

Justice Mandokhail questioned the legal basis for the ECP's notifications.

Awan clarified that the notifications were not related to Article 63 A.

Justice Akhtar pointed out that while it was said that the ECP is a constitutional body capable of everything, the ECP's official correspondence with the Assembly Secretariat should be considered.

Awan mentioned that a constitutional provision cannot be read in isolation.

Justice Mandokhail asked whether the defective clause would apply if there were no parliamentary party. Awan reiterated that only a political party can become a parliamentary party.

The AGP referred to a verse from Allama Iqbal's poetry, "I admit I am not worthy of your sight, but look at my passion and my patience."

Justice Mandokhail noted that accepting Awan's interpretation would mean that many members in parliament would not have a parliamentary leader, making it impossible to proceed against anyone under Article 63 A for defection.

Justice Akhtar pointed out that now even the ECP's records recognise these members as part of the Sunni Ittehad. He questioned how the ECP could deny them seats while recognising them as a parliamentary party.

The ECP's counsel informed the parliament that their records showed the Sunni Ittehad as a parliamentary party, maintaining these records for a reason.

Awan argued that the SIC was neither a parliamentary party nor entitled to reserved seats.

He suggested that a parliamentary party comprising successful candidates from the SIC in by-elections could be formed, but independent members could not join the SIC's parliamentary party.

Justice Mandokhail noted that a parliamentary party is only relevant for the application of Article 63 A.

Awan mentioned that the SIC had challenged the PHC's decision, and a question regarding the application of Article 187 for complete justice was also raised.

Article 187 could only be applied to cases under consideration, not to initiate new judicial proceedings.

Justice Mandokhail questioned whether the Election Commission had the authority to issue the notification recognising a parliamentary party. He asked if the Election Commission could independently declare a candidate as independent and not part of a party.

Justice Shah mentioned that people knew the independent candidates were affiliated with PTI. He asked where the court should exercise the power of complete justice when it could not see the whole picture.

"Should the court turn a blind eye?

Justice Minallah reiterated, "It has been proven that the Election Commission misinterpreted the court's ruling. Should the judiciary endorse an unconstitutional interpretation by a constitutional body?"

"Do you want us to revive the doctrine of necessity?" Justice Shah added, "This is not a simple land dispute case limited to an appeal," he noted.

CJP Isa stated, "The court applies the law and constitution, not the requirements of justice. All decisions based on the doctrine of necessity refer to the demands of justice. When no solid material is found, justice is interpreted at will. I am not imputing malice to any judge."

Justice Minallah questioned whether the court should endorse a severe constitutional violation. He asked, "Can the elephant in the room be ignored?"

The court is currently hearing further arguments in the case.

 

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‘Doctrine of necessity’ echoes in Courtroom No 1, again​

Nasir Iqbal
July 3, 2024

• Justice Isa regrets how some judges are ‘imposing their will’ on parliament
• Justice Mansoor says court cannot limit itself to one matter, stresses import of ‘complete justice’
• Justice Minallah terms PTI’s exclusion from polls ‘a grave violation’

ISLAMABAD: As the issue of reserved seats meant for the Sunni Ittehad Council continued to polarise the full court, Chief Justice Qazi Faez Isa on Tuesday equated the ‘doctrine of necessity’ with the ‘justice principle’, saying successive military takeovers had been legalised in the past using the same principle, as embodied in the maxim ‘Salus Populi Supreme Lex Esto’ (the welfare of people should be the supreme law).

“When you cannot find a tangible reason to hang on to the Constitution, you open the doors for the doctrine of necessity,” he said, and implored that Pakistan should be allowed to get on the constitutional path for once.

 

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Pakistan should be allowed to get on the constitutional path for once.

Translation: Pakistan should be be allowed to get on my extension path. - Bughaz-e-Imrani Qazi

 

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Not again !!