Monday July 22, 2024

Imran influenced ECP as PM, avoided party polls: CJP

Chief justice observed that the Constitution was clear and no judge could give a verdict by bypassing it

By Sohail Khan
June 25, 2024
Chief Justice of Pakistan (CJP) Qazi Faez Isa (centre right) conducts hearing of Sunni Ittehad Council petition on June 24, 2024. — YouTube screengrab/Geo News Live
Chief Justice of Pakistan (CJP) Qazi Faez Isa (centre right) conducts hearing of Sunni Ittehad Council petition on June 24, 2024. — YouTube screengrab/Geo News Live

ISLAMABAD: Chief Justice of Pakistan Justice Qazi Faez Isa said on Monday that Imran Khan had influenced the election commission and the PTI had committed suicide by not holding intra-party elections.

The chief justice observed that the Constitution was clear and no judge could give a verdict by bypassing it. He also raised questions about the independent candidates joining the Sunni Itehad Council (SIC) ahead of the general elections held on February 8, 2024, sayingPakistan Tehreek Insaaf (PTI) was a registered party. He asked why these candidates preferred joining the Sunni Itehad Council (SIC).

A 13-member full court, headed by Chief Justice Qazi Faez Isa, heard the petition filed by the Sunni Itehad Council (SIC) challenging the verdict of the Peshawar High Court (PHC), which declined the party’s reserved seats for women and minorities in the National and provincial assemblies.

Other members of the full court include 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 Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hassan Azhar Rizvi, Justice Shahid Waheed, Justice Irfan Saadat Khan, and Justice Naeem Akhtar Afghan.

Justice Ms. Musarrat Hilali was not part of the full court due to her ailment. The court conducted the proceedings live on its YouTube channel. Continuing his arguments, Faisal Siddiqui, counsel for the Sunni Itehad Council (SIC), submitted that after being elected to parliament, independent candidates can join any political party. He argued that the election commission had misinterpreted the political party’s rights by ignoring the constitutional provisions related to reserved seats.

In this respect, the counsel cited Articles 51 and 106 of the Constitution, as well as judgments delivered by Justice Syed Mansoor Ali Shah, Justice Muneeb Akhtar, and Justice Jamal Khan Mandokhail.

Faisal Siddiqui contended that in his judgment, Syed Mansoor Ali Shah had held that the Constitution must be progressive and related to society. He further contended that there are some fundamental aspects of constitutional provisions, one of which is that reserved seats will be based on the principle of proportional representation, while another aspect is that these seats will be on the given list of each party.

“The third aspect is that each party will get these seats according to its general seats after the inclusion of independent candidates,” Faisal Siddiqui submitted. Justice Jamal Khan Mandokhail observed that independent candidates can join any party participating in the elections, adding that people have voted for the political parties that contested the elections.

“How can a political party that has not participated in the elections be given specific seats?” Justice Mandokhail questioned. Justice Muneeb Akhtar observed that the election commission had declared the PTI candidates as independent candidates. The judge observed that political parties are the basis of parliamentary democracy, adding that the Election Commission had declared PTI candidates as independent candidates due to the Supreme Court decision.

“This is a very dangerous interpretation,” Justice Muneeb Akhtar remarked. Justice Aminuddin Khan observed that all the candidates were from the PTI, presenting contradictory facts.

Faisal Siddiqui contended that reserved seats can only be given under the proportional representation system, adding that there is no concept of allotting specific seats apart from the proportional representation system. He further submitted that reserved seats are the right of political parties, not candidates.

He submitted that the election commission, on the one hand, says that an independent candidate can join any political party, while, on the other hand, it believes that participation can only be in the party present in parliament.

“This interpretation of the election commission is tantamount to suicide,” the counsel contended. “This court is bound by the words written in the Constitution,” the CJP told the counsel. “It is possible that the court will agree with the interpretation of the election commission but not with your interpretation,” the Chief Justice remarked.

“But the question is whether the party that did not participate in the election can get reserved seats or not,” Faisal Siddiqui contended, adding that the court has to look not only at the meaning but also at the purpose of the provisions of the constitution as well.

Justice Jamal Khan Mandokhail, however, questioned how reserved seats could be given to a party that did not even bother to contest elections. Justice Aminuddin Khan questioned whether independent members could form a new political party.

Faisal Siddiqui replied that if independent members can register a political party in three days, then they can join it. “You say that a political party doesn’t need to get a seat in the elections,” the chief justice asked Siddiqui.

Justice Athar Minallah observed that there is nothing to do with the reserved seats not having election symbols. Justice Minallah continued that the election commission recognises that both the PTI and the Sunni Itehad Council are registered parties.

At this, Chief Justice Qazi Faez Isa asked why, if the PTI is a registered party, independent members did not join it. “Didn’t independent members commit political suicide by not joining the PTI?” the CJP questioned.

Faisal Siddiqui submitted that there is no concept of allotting reserved seats apart from the proportional representation system, adding that reserved seats are the right of political parties, not candidates.

“There are very unusual circumstances in which a political party was compelled to contest elections without an election symbol,” Justice Muneeb Akhtar remarked. Chief Justice Qazi Faez Isa observed that our Constitution is very progressive, adding that everything is very clear in the Constitution after the 18th constitutional amendment.

“Whether we are wiser than the parliament,” the CJP asked. Justice Athar Minallah observed that it’s a bitter reality that elections were held and one party contested the elections without a symbol.

“The country was not governed under the Constitution, a level-playing field was not given, and the court cannot shut its eyes while ensuring the protection of the people’s rights,” Justice Athar Minallah remarked.

The chief justice told Faisal Siddiqui that his arguments were based on a conflict of interest. “You should choose whether to represent the PTI or the Sunni Itehad Council (SIC),” the CJP asked Siddiqui. “We have to see what the Constitution says,” the CJP continued, adding that the court will not see what the ECP has done.

“My reservations are about the election commission, not about this court,” Faisal Siddiqui submitted, adding that it is a direct violation of proportional representation.

The chief justice asked the counsel to suppose that if the PTI said that these reserved seats belonged to it and if the Sunni Ittehad Council also claimed these reserved seats, then what would we do? Whether we will toss a coin?

Faisal Siddiqui contended that there is nothing required under Article 104 of the Constitution that the election schedule has to be given before the election, adding that the said article does not envisage either before or after depositing the party list.

“Section 58 of the Election Act 2017 could be the only solution for resolving this,” Faisal Siddiqui contended, adding that this section relates to alterations in the election schedule.

He recalled that on the last date of the hearing, Justice Syed Mansoor Ali Shah had questioned if 80 percent get elected independently, and whether 10 percent of political parties would be given these reserved seats beyond their proportional representation.

Faisal Siddiqui further submitted that those seats cannot be filled by giving them to other political parties and cannot be left vacant as well, and for this, the court will have to evolve a proper mechanism and give judicial direction as well.

“The ECP still recognises it as a political party; hence, the house cannot be left vacant, and it is for the ECP to identify this party, which was enlisted as a political party,” Justice Athar Minallah observed.

The judge further observed that the ECP is responsible for protecting the rights of the voters. “I agree,” Faisal Siddiqui replied. Justice Minallah further observed that under the Constitution, we must secure the rights of the people.

At one point, the chief justice said that, at the time of the election, Barrister Ali Zafar came to court when elections were not held. “We gave the date for holding the election, and who tried to halt the election?” the CJP asked and further questioned whether the court had asked the PTI not to hold an intra-party election, even though the ECP had also asked the party to hold intra-party elections.

“At that time, Imran Khan was the prime minister who was influencing the election commission,” the CJP continued.

“When we talk about voters, then where did the right of eight lakh voters of the PTI go? Avoid half-talk,” the CJP added. Faisal Siddiqui submitted that PTI’s review petition against the intra-party election is pending with the apex court.

“Let us check,” the CJP said. During the hearing, Justice Athar Minallah observed that it’s time now that the country be governed according to the Constitution.

Counsel for the Khyber Pakhtunkhwa speaker told the court that the decision of the ECP is against the law and Constitution, adding that he has filed three applications in the apex court and will assist the court.

Meanwhile, Salman Akram Raja, counsel for the petitioner, Kanwal Shozeb, told the court that she is the president of the PTI Women Wing and was not elected in the elections but was to be elected on the reserved seats for women after the PTI and Sunni Itehad Council get reserved seats.

He further submitted that Kanwal Shozeb belongs to the PTI. Justice Muhammad Ali Mazhar asked, “If the PTI had not contested the elections, how could it make its case?”

“But you have made out the case for the Sunni Ittehad Council, hence, you are destroying the case of Faisal Siddiqui,” Justice Muhammad Ali Mazhar told Raja.

“Raja Sahib, you are appearing before this court, which is the guardian of the rights of the people,” Justice Athar Minallah told Raja. Justice Minallah further observed that the case relating to the February 8 elections is also pending before this court.

“This court had taken a suo moto notice on irrelevant matters, but the instant case was a perfect one,” Justice Minallah remarked. “I agree with my brother Justice Athar Minallah in the larger perspective,” Justice Mansoor Ali Shah remarked, adding that, in his opinion, the PTI should have approached this court claiming that these reserved seats belong to it.

“But what was the situation whereby the PTI independent candidates preferred to join the Sunni Itehad Council?” Justice Minallah questioned.

“Instead of going into technicalities, why is the court not exercising its jurisdiction under Article 184(3) of the constitution?” Justice Minallah questioned. “If the Sunni Itehad Council (SIC) makes a statement that Kanwal Shozeb was its candidate, then the court can hear this petition,” Justice Yahya Afridi observed.

Justice Minallah asked Raja why the 87 independent candidates joined the one-man political party (SIC). “Because we were told that after the PTI did not get the election symbol, it would not get the reserved seats, that’s why they joined the SIC.”

“Whether in such a situation all the laws and principles are broken,” the CJP asked Raja, to which he replied that senior counsel decided that it does not matter if they joined the SIC. “We have knocked on the doors of the Supreme Court as well as approached the election commission,” Raja submitted.

The CJP said that one can file an appeal against the objection of the registrar’s office as its office does not have judicial powers.

“Here the rights of people were robbed,” Justice Athar Minallah remarked, adding that when the late Fatima Jinnah had contested the election, the same was the situation when people were deprived of their rights. “Nobody tells the complete truth,” Justice Minallah remarked, but Salman Akram Raja submitted that instead of arguing on a political basis, he would argue as per law and Constitution.

“When you talk about the will and rights of the people, then elections for all the seats should be held,” the CJP remarked, adding that people have voted for the PTI.

“Did the voters know that you would join the Sunni Itehad Council (SIC)?” “Tell the truth and why people are reluctant to do so,” Justice Athar Minallah told Raja, adding that he doesn’t know why people are suppressing the truth.

Salman Akram Raja said that independent candidates can join a party even if it does not secure a single seat, and they can join even after three days. The CJP observed that people should know about the candidates and the political party as well.

The CJP said that if 86 independents do not join any party, what will happen to reserved seats? adding that if they remain independent, those reserved seats cannot be left vacant.

The ECP distributed all the reserved seats among different political parties but ignored the SIC, Justice Athar Minallah observed.

“It is no secret that the PTI had made wrong decisions during the elections and repeated those mistakes as well,” Justice Mansoor Ali Shah observed.

“You are counsel for the PTI, so you cannot talk about Sunni Itehad Council (SIC),” Justice Jamal Khan Mandokhel asked the counsel.

“You are saying that the ECP had wrongly interpreted the SC judgment, but at the same time you should not make a wrong interpretation as well,” Justice Athar Minallah asked the counsel for the PTI candidate.

“We are sitting here to protect the rights of the voters,” Justice Minallah added. “Your client Kanwal Shozeb was not the people’s representative, and if you had felt the mistake of the ECP, then file a petition or amend the Constitution,” the CJP told the PTI counsel.

The CJP said that the ECP is a constitutional body and deserves respect, adding that the Supreme Court also deserves respect as well.

Salman Akram Raja submitted that there is no constitutional bar on joining the Sunni Itehad Council (SIC). The court adjourned the hearing until Tuesday (today) at 9:30 am. Meanwhile,

During the arguments by Sunni Ittehad Council’s lawyer Salman Akram Raja in the courtroom, when a green light flashed from a woman’s phone, Chief Justice Qazi Faez Isa questioned, “Who was taking a picture from the back? This woman is sitting here; is she taking a picture with a green thing?”

The Chief Justice then asked the woman to stand up: “What do you have in your hand?” He said, “Look at her phone and see what she is doing and what that green light was that appeared.”