Reserved seats: ECP says majority judgement premised on ‘erroneous conclusion'
Barrister Sikandar Bashir Mohmand filed seven formulations before the Constitution Bench, which is hearing the review against the SC judgment on reserved seats.
He said that the PTI in its CMA 5913/ 2024 filed on 26-6-2024 did not pray for allocation of the reserve seats to 'PTI itself' or to 'either PTI or SIC'; instead PTI asserted; 'the denial by the ECP of reserve seats to the SIC will result in the national assembly and the provincial assemblies losing their representative character. These seats cannot be allowed to any other party.'
The ECP submitted that CMA 5913/ 2024 is stated to have been filed under Order XXXIII Rule 6 of the Supreme Court Rules, 1980 (inherit powers of SCP) and not under Order V Rule 2 (2) which is the relevant Rule for an application for striking out or adding a party. Therefore, PTI did not formally seek 'impleadment' in Civil Appeals 333 and 334 of 2024.
The majority judgement incorrectly describes CMA 5913/ 2024 as 'PTI's application for impleadment'. As PTI was evidently not party to proceedings before the ECP, PHC and SCP, no relief could have been lawfully granted to it, even by exercising power under Article 187 (1) of the Constitution.
It submitted that the provisions of Article 51 and the Article 106 have been misconstrued in the majority judgement, which inter alia has distorted the scheme of the provisions of Article 51 and Article 106 as read with Section 104 of the Elections Act, 2017 and the Election Rules, 2017.
The ECP stated that it is an essential component of the scheme of the provisions of Article 51 and Article 106 that the List of Priority for Seats Reserved for Women and Non-Muslims (Form 66) of each political party, as well as, the nomination papers for candidates in such list must be submitted and scrutinised prior to polling day and in parallel with filing and scrutiny of nomination papers of candidates contesting on general seats.
The rationale being that the electors have notice of the candidates of the concerned 'political party' who may be elected on reserve seats before polling day.
The direction in paragraph 9 of the majority judgement allowing the filing of the List of Priority for Seats Reserved for Women and Non-Muslims (Form 66) after the election has concluded and returned candidates have been notified is in conflict with the Election Programme and the democratic objective and rationale.
The ECP stated that the timelines prescribed in paragraph 8 and 9 could only lawfully be prescribed by Parliament through legislation amending Article 51 Provisions (and Article 106 provisions), as well as, Sections 51, 66, 67 and 104 of the Elections Act, 2017. The said timelines could also not be prescribed without striking down the Election Programme dated 15-12-2023 as amended on 22-12-2023 read with Section 104 of the Elections Act, 2017.
The ECP submitted that the power to 'alter' the Election Programme vests solely with the ECP under Section 58 of the Elections Act, 2017 read with Article 218 (3) and Article 219 (d), as well as, the last sentence of Article 222 of the Constitution. Therefore, in any event such timelines could not be prescribed by the SCP, even under Article 187 (1) of the Constitution.
It contended that the timelines given in paragraphs 8-9 of the Majority Short Order are directly in conflict with the scheme and timeline in the Article 51 Provisions and also sections 51, 66, 67 and 104 of the Elections Act, 2017. Therefore, same could not be given in exercise of power under Article 187(1).
Since PTI was not a party to proceedings before the ECP, PHC and SCP and neither did it make an express prayer for allocation of the Disputed Reserve Seats to itself, this specific matter was never 'a case or matter pending before it' in terms of Article 187 (1) in consequently relief to PTI by invoking Article 187 (1) is impermissible.'
Copyright Business Recorder, 2025
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