By
Qamar Bashir
Former Press Secretary to the President
Former Press Minister to the Embassy of Pakistan to France
Former MD, SRBC
Today, during the final day of hearings at the Supreme Court on the extremely critical case of the allocation of reserved seats for women and non-Muslims, Salman Akram Raja, representing both PTI and independent women candidates, outshined every other lawyer. He argued against the deprivation of SIC of the reserved seats for women and minorities in the National Assembly and the Provincial Assemblies, declaring this act of the Election Commission(EC) unjust, arbitrary, and whimsical. He effectively countered the arguments of the Election Commission and the Attorney General of Pakistan, who contended that since SIC was not a parliamentary party, it could not be allowed to claim proportional reserved seats.
He argued that SIC was a registered and declared political party by the Election Commission and that it became a parliamentary party right after independent candidates joined this party within three days of the elections and took the oath as members of the National Assembly. He stated that the EC ’s presumption of SIC as not being a parliamentary party had no constitutional or legal basis, but was a self-serving interpretation that does not stand the test of logic. He further argued that their logic, which allows a party to become a parliamentary party, even if it won one seat, but denies the same status, if more than 89 independents join it neither has logic nor the strength of law.
Justice Athar Minallah, who has persistently argued throughout all previous hearings, once again reiterated that the will of the Constitution cannot be brushed aside by entangling in procedural lapses and hiccups. He stated that the EC has committed a serious violation of the Constitution with its biased, whimsical, and obvious behavior to keep one party from contesting the election. He added that by doing so, the constitutional rights of the millions of voters who had voted for PTI have been violated. He repeated his question, asking why this court should not reverse all the malafide actions of the Election Commission and restore the fundamental rights of the people to elect their representatives, rights which were usurped by the use of brute force by the state in connivance with the Election Commission and its appointed Returning Officers.
Mr. Faisal Siddique representing SIC, who was once again brilliant, focused his argument on the intent and will of the Constitution emphasizing one and only one point: proportional representation, not disproportional representation. He argued that it is now proven beyond doubt that during all phases of the elections, the Election Commission committed constitutional hypocrisy by discriminating against PTI, by replacing the proportional allocation to seats set out by the constitution to disproportionate allocation of seats.
He cited the example of NA where PML-N which had won 107 in the National Assembly was doled out 15 additional leftover seats making a total 123 seats. PPP which had won 68 seats was awarded with additional 5 left over seats to make total seats at 73. The number of JUI-F lawmakers had gone up to 11 from seven.
He argued that the most glaring violation of proportional allocation was committed in the KP Assembly, where PTI had won 91 seats compared to just 19 seats secured by all other political parties combined. Despite this, not even a single reserved seat was allocated to PTI, while JUI, which had won only 7 general seats, was allocated 10 reserved seats. PML, which had won 6 general seats, was given 8 reserved seats, and PPP, which bagged 4 general seats, got 6 reserved seats.
At this point, the Chief Justice intervened and fielded a question typical of him. He asked whether the Constitution should be interpreted on the basis of fairness or text. Siddique promptly replied, “the text,” and stated that the text says proportional representation. Another honorable judge came to the rescue of Mr. Siddique, asking, “Where in the text of the Constitution is it given that leftover seats may be allocated to other political parties?”
Mr. Siddique promptly replied, “No sir, nowhere in the constitutional text does it allow such an act.” He stated that according to the text of the Constitution and the scheme of election laws, such arbitrary and disproportionate allocation of seats is not possible. He referred to Rule 96 of the Election Rules, which clearly stipulates that the Election Commission shall allocate the reserved seats proportionally to each political party. He continued and referred to Rule 96 where the Election Commission had issued a notification in the official Gazette, declaring SIC a parliamentary party and admitting that all 98 independents had joined SIC within three days after the elections. This consequently meant that SIC was qualified to be allocated reserved seats for women and non-Muslims.
However, as an afterthought, the Election Commission, with an obvious intent to raise the number of ruling parties to a two-thirds majority in the Parliament, acted in bad faith, with malafide intentions, and denied SIC the reserved seats which it rightly deserved. He refuted the argument of the existence of independents in the National Assembly, arguing that after joining the SIC, currently there are no independents in the NA.
An interesting point was raised by another honorable member of the bench, who said that SIC, in fact, received a bonus of 98 members even without contesting the election. To this, Siddique candidly replied, “Thanks to the Election Commission.” This was the moment Justice Athar Minallah had been waiting for. He jumped in and said, “Was not all this jugglery, misinterpreting of the Constitution and Supreme Court judgment, and jumping from one position to another done only to prevent one particular party from gaining a majority in Parliament?” Siddique sarcastically replied, “Had the Election Commission acted justly, honestly, and fairly, SIC would have no case at all.”
All eyes are now on the Supreme Court’s final judgment, which is likely to bring another constitutional, legislative, legal, and administrative storm. This judgment may either put the country back on the constitutional path or…
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