During the hearing of the case concerning reserved seats by the Sunni Ittehad Council in the Supreme Court, Justice Muneeb Akhtar remarked that the foundation of the parliamentary system is based on political parties. Meanwhile, Justice Athar Minallah stated that it has been proven that the Election Commission misinterpreted the court's decision. Can a constitutional body’s unconstitutional interpretation be endorsed by the court?
The full court bench of 13 members of the Supreme Court, led by Chief Justice Qazi Faez Isa, heard the case concerning reserved seats for the Sunni Ittehad Council.
The full court included Justice Syed Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Syed Hassan Azhar Rizvi, Justice Shahid Waheed, Justice Irfan Saadat Khan, and Justice Naeem Akhtar Afghan.
The hearing of the case was broadcast live on the Supreme Court’s website and YouTube channel.
Attorney General Mansoor Usman Awan's Arguments
Attorney General Mansoor Usman Awan began his arguments by addressing the questions asked by the court the previous day. He said the record of the allotment of reserved seats in the 2018 elections was requested, and there is also a record of reserved seats from the 2002 and 2018 elections. Makhdoom Ali Khan mentioned that according to the Constitution, seats are allocated to political parties, not independent candidates. Political parties are eligible for reserved seats only if they have won at least one seat.
He then started reading the Constitution concerning reserved seats in 2018.
He said there were 272 complete seats, elections were postponed on three seats, 13 independent candidates were elected, and nine candidates joined political parties. The formula for reserved seats was applied to 265 seats. In 2018, there were 60 reserved seats for women and 10 for non-Muslims.
Attorney General Informed About Reserved Seats in 2002
The Attorney General also informed the court about the reserved seats in 2002. He mentioned that Article 51 was applied regarding reserved seats in 2002.
Mansoor Usman Awan further stated that in the 2002 elections, 20% of the candidates in Balochistan were independents, and independent candidates were not included in the determination of reserved seats. An independent candidate who joins a political party is considered a member of that party.
Justice Athar Minallah Remarks
Justice Athar Minallah remarked that the Attorney General had not answered the fundamental question. The Election Commission removed a political party from the elections, violating the Constitution itself. If the Election Commission takes unconstitutional actions, is it not the judiciary's responsibility to correct it? A party's voters were excluded from the electoral process, and democracy is the foundation of the Constitution.
Attorney General Mansoor Usman Awan said he would answer this question in the final part of his arguments. The question is whether independent candidates can join the Sunni Ittehad Council under Article 51 and if the Sunni Ittehad Council is eligible for reserved seats.
No Seat Can Be Left Vacant, Says Attorney General
Justice Ayesha Malik said the number of independent candidates in 2024 is significant. The Attorney General replied that according to the Constitution, no seat can be left vacant.
Justice Mansoor Ali Shah said that the issue of independent members had never come to the court before. This time the number of independent members is very high, and the case has also come to the court. The Attorney General replied that if 120 days are left before the end of the assembly term, the Constitution says there is no need to hold elections.
Where Did Such a Large Number of Independent Candidates Come From? Justice Muneeb Akhtar
Justice Muneeb Akhtar remarked that the parliamentary system is based on political parties. The question is, where did such a large number of independent candidates come from? Did people choose them as independent candidates themselves, or did the Election Commission declare them independent? If this happened, shouldn't the court correct this mistake? Shouldn't the legal option be adopted to correct this mistake?
The Attorney General replied that under the Election Act, the Election Commission must complete all arrangements within four months before the end of the assembly term.
Justice Jamal Mandokhail said that Article 51 mentions seats, not membership.
Justice Muneeb Akhtar said that Article 224 provides a concession; otherwise, no assembly seat can be left vacant. The real problem arose due to the Election Commission's mistake. The Election Commission misinterpreted the Supreme Court's decision. If there are alternative methods, they should be corrected. It can be inferred from the Constitution that seats cannot be left vacant. The Attorney General said that the main engine is political parties.
Justice Muneeb Akhtar said that proportional representation means that public representation should be reflected. Mansoor Usman Awan replied that under Article 51(d), independent members can be kept separate.
We Must Stay Within the Text of the Constitution Before Us, Chief Justice
Chief Justice Pakistan remarked that no party has said that seats should be left vacant. Every party says that seats should be given to them, not to the other party. So why are you taking so much time on the point that seats cannot be left vacant? Why didn't the constitution-makers think of this potential situation? It's their job. It is not our job to look into why something is not in the Constitution. I keep saying we must stay within the text of the Constitution before us.
Attorney General Mansoor Usman Awan mentioned that Faisal Siddiqi had said that if the Sunni Ittehad Council does not get seats, leave them vacant. It is necessary for a parliamentary party that a political party has won a seat in the elections. The parliamentary party comes into existence after its members take an oath. The example of a parliamentary party is irrelevant as this matter concerns the pre-election phase.
Where is the Mention of the Formation of a Parliamentary Party in the Constitution? Justice Mansoor Ali Shah
Justice Mansoor Ali Shah asked where the mention of the formation of a parliamentary party is in the Constitution. The Attorney General replied that the parliamentary party is only mentioned in Article 63(A). For the application of Article 63(A), the existence of a parliamentary party is necessary.
Justice Mansoor Ali Shah asked if the Election Commission had declared the Sunni Ittehad Council a parliamentary party. The Attorney General replied that he did not know.
Justice Mansoor Ali Shah asked under what authority the Election Commission declares a parliamentary party. How did the notification for declaring a parliamentary party come about? The Sunni Ittehad Council has placed the notification on record.
The Attorney General said he would inform the court in rebuttal arguments. Justice Mansoor Ali Shah insisted that the Attorney General should provide his view on the Election Commission's notification.
Justice Mansoor Ali Shah showed the notification to the Attorney General, and the lawyer for the Sunni Ittehad Council showed the notification from the National Assembly Secretariat.
Advocate Faisal Siddiqi said that the National Assembly Secretariat had also made Zartaj Gul the parliamentary leader through a notification.
If There Are Winning Candidates of a Political Party, the Political Party Automatically Becomes a Parliamentary Party
The Attorney General said that independent candidates cannot form a parliamentary party. Chief Justice Qazi Faez Isa remarked that if there are winning candidates of a political party, the political party automatically becomes a parliamentary party.
Justice Jamal Mandokhail said that if an independent candidate forms a party, Article 51 will not apply. If an independent candidate is outside the assembly, the party will be considered outside as well. Mansoor Usman Awan replied that an independent candidate cannot join a political party that is not a parliamentary party.
Chief Justice Faez Isa asked about the status of this notification. How can a letter from the Deputy Registrar be considered the position of the Supreme Court?
Justice Muneeb Akhtar asked how official communications can be ignored.
Justice Jamal Mandokhail asked under what law the Election Commission issued the notifications. The Attorney General replied that these notifications are not related to Article 63(A).
Attorney General Cited a Poem from Allama Iqbal’s Bang-e-Dra
Attorney General Mansoor Usman Awan cited a poem from Allama Iqbal’s Bang-e-Dra: “Though I am not worthy of your sight, look at my passion and wait.”
Justice Jamal Khan Mandokhail asked if there would be no parliamentary leader for so many people sitting in Parliament according to the Attorney General’s interpretation. If this position is accepted, no action will be possible against anyone for defection under Article 63(A).
Election Commission Telling Parliament That Our Records Show This Is a Parliamentary Party, Justice Muneeb Akhtar
Justice Muneeb Akhtar said that on one hand, it is said that the Election Commission is a constitutional body. Now, the Election Commission’s record recognizes these people as part of the Sunni Ittehad Council. How can the Election Commission be recognizing them as a parliamentary party while depriving them of seats? The Election Commission is telling Parliament that according to its records, this is a parliamentary party. Records are kept for a reason, aren’t they?
Justice Ayesha Malik asked if a political party that is not a parliamentary party but wins a seat can be considered a parliamentary party. The Attorney General replied that elections will determine who the parliamentary party will be. If independent candidates are present, they can join the parliamentary party.
Justice Ayesha Malik clarified that she was not asking about independent candidates but about the right to participate in elections. According to the Attorney General, only a political party can become a parliamentary party.
Justice Yahya Afridi asked if the Sunni Ittehad Council is not considered a political party under
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