In a surprising remark, Supreme Court's Justice Jamal Khan Mandokhail observed Monday that the public did not vote for independent candidates during the February 2024 general elections; rather, they voted for candidates supported by a political party, the Pakistan Tehreek-e-Insaf (PTI).
Justice Mandokhail made these observations while hearing a case regarding reserved seats in the top court on Monday. He was part of a 'full court' bench comprising 13 judges headed by Chief Justice Qazi Faez Isa. The case had been brought by the Sunni Ittehad Council (SIC), challenged a decision of the Peshawar High Court (PHC) against the award of reserved seats for women and minorities in national and provincial assemblies to the SIC after a large number of independent candidates decided to join it after the elections.
The other members of the bench included Justices Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Aminuddin Khan, Mandokhail, Muhammad Ali Mazhar, Ayesha Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan and Naeem Akhtar Afghan.
Justice Minallah observed that the Election Commission of Pakistan (ECP) should have rectified the procedural mistakes so that people could not be disenfranchised. ECP's job, he observed, was to ensure that each political party gets it right so that no one is disenfranchised.
SIC's counsel, Advocate Faisal Siddiqui, contended that the allocation of the reserved seats, which were supposed to be allocated to the SIC but were instead allocated to other parties, violated Articles 51(vi)(d) and (e) of the Constitution.
He placed before the court a letter from the Election Commission of Pakistan (ECP) and claimed that the SIC was a parliamentary party with 82 general seats in the National Assembly and was, therefore, entitled to reserved seats. Siddiqui pointed out that the ECP had made a few mistakes while issuing contradictory statements which mentioned a total of 77 or 78 such reserved seats which were to be allotted to the SIC. He also provided the court with details of reserved seats in the provincial assemblies.
The counsel for SIC further submitted details of the number of general seats won by each party in the February 8 elections and notified by the ECP.
During the hearing, Justice Minallah observed that the ECP did not notify the SIC as a parliamentary party.
At this, SIC's counsel recalled that candidates who had contested as independents in the general elections had joined the SIC within three days of their victory notifications as per the law.
Justice Mandokhail asked if the candidates, who had joined the SIC, had received any party affiliation certificate during the nomination process.
Justice Minallah also questioned whether the 82 independent candidates who had joined the SIC had demonstrated affiliation with any political party when they filed their returns (notifications).
The counsel responded in the affirmative.
Justice Mandokhail wondered if they had filed party affiliation with their returns, how could they be called independent candidates?
Advocate Siddiqui responded that the ECP had informed the candidates that they could not contest the elections as PTI candidates but as independents.
Justice Minallah asked if the ECP could assume the role of an adversarial to a political party or if it has to ensure that each political party gets it right so that no one is disenfranchised.
Justice Muneeb Akhtar, while referring to the ECP's mandate to ensure proportionality in allocating reserved seats, observed, "Prima facie, it seems to me, with all due respect, how can you fulfil your duty while violating both the negative and the positive".
Later, the top court adjourned further hearings in the case until Tuesday.