Reserved seats case: ECP lacks authority to kick out any party from polls, says SC judge

• Bat symbol order not aimed at PTI's exclusion from polls, says judge.
• Justice Malik questions decision to declare candidate independents.
• No discrepancy in certificate, ECP changing candidate's status: CJP.

ISLAMABAD: Supreme Court's Justice Athar Minallah said Thursday that the Election Commission of Pakistan (ECP) lacks the authority to kick out any party from the elections.

"Election Commission does not have the authority to exclude any political party from [taking part in] elections," Justice Minallah said as a 13-member full court, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, heard the Sunni Ittehad Council (SIC) plea against the Peshawar High Court (PHC) verdict denying them reserved seats.

The bench comprises Justice Syed Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Malik, Justice Athar Minallah, Justice Syed Hassan Azhar Rizvi, Justice Shahid Waheed, Justice Irfan Saadat Khan and Justice Naeem Akhtar Afghan.

During the hearing today, Justice Muneeb questioned which party SIC Chief Hamid Raza associated himself with, whereas Justice Mandokhail inquired whether a candidate can change his party after withdrawing his nomination papers.

Apprising the court of details regarding Raza's documents and political affiliation, ECP's lawyer Sikander Bashir noted that the document submitted by the SIC chief mentioned that he was associated with PTI-Nazriati (PTI-N), which in fact is a different political party altogether and is in no way linked to the PTI, the lawyer stressed.

"Raza, on oath, said that he was associated with PTI-N," Bashir said.

However, the politician contested the polls as an independent candidate and didn't submit the PTI-N ticket, but in fact, submitted a certificate showing his association with the PTI, the counsel added.

Furthermore, CJP Isa inquired whether it is necessary to attach a certificate of affiliation to the party from which the election is to be contested.

"It is necessary to show the candidate's declaration and affiliation with the party," responded the ECP's lawyer, adding that a candidate is considered independent if the declaration and political affiliation do not match.

However, the chief justice noted that there was no discrepancy in the certificate and the ECP was in fact changing the candidate's status.

"Why shouldn't we consider [candidates] as belonging to the PTI?" CJP Isa said, highlighting that there are issues with the documents submitted by the ECP in the top court.

Additionally, Justice Malik questioned why the ECP declared the candidates as independent when they were in fact declaring their association with a political party.

Moreover, Justice Muneeb, while referring to the apex court's earlier decision wherein it had upheld the ECP's decision to revoke the PTI's "bat" symbol, clarified that the SC had not intended to exclude the PTI from the polls.

"You [ECP] conveniently said the candidates must be declared independent as [PTI] wasn't allocated an election symbol [...] how did you reach such a major decision?" Justice Muneeb said.

"An independent candidate may also be allocated the 'bat' sign," CJP Isa said, adding that the court cannot do anything if someone misinterprets their decision.

The court then directed the electoral body to provide PTI's list regarding reserved seats to other lawyers along with the certificates and declarations of the candidates.

The case has been adjourned till July 1 next week.

Reserved seats saga

The whole reserved seats saga began after the PTI-backed independent candidates emerged victorious in the February 8 elections and subsequently joined the SIC in a bid to claim seats reserved for minorities and women.

The move, however, didn't prove to go in the party's favour as the ECP, citing its failure to submit its list of candidates, denied allocating the reserved seats to the SIC.

The party then approached the PHC which upheld the electoral body's decision on the matter.

Subsequently, the SIC moved the SC seeking to set aside the PHC verdict and the allocation of 67 women and 11 minority seats in the assemblies.

On May 6, a three-member SC bench headed by Justice Mansoor Ali Shah, including Justice Muhammad Ali Mazhar and Justice Athar Minallah, suspended the PHC verdict.

It then referred the matter to the judges' committee for the formation of a larger bench since the matter required constitutional interpretation.

Meanwhile, the ECP had last week submitted its response to the apex court, saying the SIC does not qualify for reserved seats as the political party doesn't allow non-Muslims to be a part of it.

The ECP informed the top court that the reserved seats cannot be allotted to the SIC as the party did not submit the list of candidates before the January 24 deadline.

The whole reserved seats issue holds significance as the PTI-backed independent candidates, who make up the majority of the opposition benches, lost as many as 77 reserved seats in NA and provincial assemblies due to the PHC's verdict.

A day earlier, the government, via Attorney General of Pakistan (AGP) Mansoor Usman Awan submitted its written response to the apex court urging it to reject the SIC's appeal seeking the allocation of reserved seats for women and minorities in the National and provincial assemblies.

The 30-page written submission argues that the reserved seats for minorities and women could be given to a political party which contested the polls and won at least one seat besides providing a list of candidates based on the total number of seats it won as per the law.

"Independently elected candidates are counted towards reserved seats for women and non-Muslims only when they join political parties within 3 days of publication of names of the returned candidates in the official Gazette" under Articles 51(6)(d) and (e), as well as 106(3)(c), the document read.

Meanwhile, the PTI has also moved the SC seeking to become a party in the said case.

The former ruling party has sought the apex court’s permission to be a party in the case after the ECP levelled "unfounded allegations on the PTI during the hearing of the SIC's appeals".

It read that the PTI and the SIC were deprived of reserved seats despite being eligible. The SIC was ready to provide a list of candidates for the allocations but was denied permission to submit it.