A constitutional bench of the Supreme Court resumed hearing on Monday a set of review pleas against the apex court’s ruling that had declared the Pakistan Tehreek-e-Insaf eligible for reserved seats, livestreaming proceedings for the first time, since the passage of the 26th Constitutional Amendment.
In the short order dated July 12, 2024, eight out of 13 judges concluded that 39 of the 80 MNAs were returned candidates of PTI in the National Assembly.
Supreme Court Justice Jamal Khan Mandokhail said that the presiding officers and returning officers failed to perform their duties in accordance with the law and constitution during February 2024 general election.
Should the Supreme Court shut its eyes, he asked Makhoom Ali Khan, who has challenged the July 12 order on behalf of certain women.
An 11-member bench of the apex court led by Justice Aminuddin Khan is hearing review petitions against the July 12 order wherein it was held that PTI is entitled to get reserved seats. However, the SC order is yet to implement.
Justices Ayesha A Malik and Aqeel Ahmed Abbasi had dismissed the review petitions on the first day of hearings.
The other 10 members of the bench are Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan, Shahid Bilal Hassan, Muhammad Hashim Khan Kakar, Salahuddin Panhwar, Aamer Farooq and Ali Baqar Najafi.
Interestingly, six judges, including the author of the majority decision, are not part of this larger bench.
Justice Shahid Bilal and Justice Mussarat Hilali wondered as to how reserved seats were given to PTI when they were not a party – neither before the Election Commission of Pakistan nor the Peshwar High Court.
Justice Aminuddin Khan said it is an admitted fact that all PTI backed returned candidates had joined the Sunni Ittehaad Council, which did not contest the general elections.
Senior counsel Makhoom Ali Khan appeared on behalf of PML-N and PPP women candidates affected by the July 2024 ruling.
Justice Mandokhail said that all judges were unanimous that reserved seats could not be allocated to SIC as it did not contest the general elections.
“How can independent lawmakers join a political party that isn’t in the parliament? Did SIC contest the elections?” Justice Malik inquired.
In response, the PPP lawyer clarified that the party hadn’t participated in the elections, and even its chairman, Sahibzada Hamid Raza, had run as an independent candidate.
Justice Mandokhail then remarked, “The SIC is not qualified for reserved seats. While the Sunni Ittehad Council could have formed a parliamentary party, it does not have the entitlement to reserved seats”.
Makhoom also said that once reserved seats were allocated to certain individuals by ECP, then same could not be called in question through quo warranto jurisdiction.
Makhoom said that election disputes could be challenged under Article 225 of the Constitution.
He also questioned the majority decision to exercise jurisdiction under Article 187 to allocate seats to PTI. He said that SC has limited jurisdiction under Article 185 of constitution.
Makhoom has completed his arguments. Surprisingly, counsels for PMLN and ECP have adopted his arguments.
The hearing of the case is adjourned until tomorrow, when SIC counsel Faisal Siddiqi will start his arguments
In its detailed verdict on the reserved seats case, authored by Justice Mansoor Ali Shah, the Supreme Court criticised the ECP for its “unlawful acts and omissions,” which caused prejudice to PTI and its supporters. The court also accused the ECP of failing to act as an impartial steward of elections.
On September 14, 2024, the day the government failed to introduce the 26th Amendment in Parliament, the Supreme Court issued a clarification, criticising the ECP for not enforcing its July 12 ruling on the reserved seats case.
Subsequently, on October 18, Justice Shah clarified once again that the amendment to the Elections Act 2017, made in August, could not overturn the verdict in the reserved seats case.
The “Elections (Second Amendment) Act, 2024” was seen as an attempt to bypass the SC ruling by barring independent lawmakers from joining a political party after a certain period.
A six-judge bench will hear PTI’s petition challenging these amendments in December 2024, while a separate PTI plea against the January 13, 2024 ruling on its election symbol is also pending.
