By Qamar Bashir
The minority judgment announced today by the two-member bench comprising Justices Amin-ud-Din Khan and Naeem Akhtar Afghan in the case of SIC versus Election Commission resonated extremely well with the arguments of the government, Election Commission, and all political parties in the government. It is a sigh of relief for the government to assume that they were not the only ones convinced that the decision of the majority bench eight plus the three-member benches, which restored the status of PTI as a party in the national and provincial assemblies and allocated to it the reserved seats for women and minorities, was wrong, unconstitutional, and akin to rewriting the constitution.
Though in its haste, the government bulldozed the approval of the proposed amendments to the election law by the National Assembly Committee. The proposed bills, if enacted, will also amend sections 66 and 104, which will exclude the amendments from the jurisdiction of court orders, including those of the Supreme Court. This bill includes provisions proposing that a political party should not be allocated seats reserved for women and non-Muslim candidates if it fails to submit its list for the reserved seats within the prescribed time. Secondly, a candidate should be considered an independent lawmaker if they have not filed a declaration with the returning officer about their affiliation with a particular political party before seeking the allotment of a poll symbol. Thirdly, an independent candidate shall not be considered a candidate of any political party if, at a later stage, they file a statement to that effect.
By fielding these amendments, the government has admitted that there were many confusions in the previous act, which gave the Supreme Court’s eight-member majority and three-member minority bench the basis to restore PTI as a party and allot to it the reserved seats for women and minorities.
These proposed amendments have also undermined the two-member minority judgment issued today and have weakened the government’s own case.
The minority judgment, though straightforward, lacked imagination and wisdom, and was plain in content and context. It basically rested its findings on the premise that the allocation of seats under Article 51(6)(d) and Article 106(3) to the political parties in the National Assemblies and provincial assemblies was made in accordance with the law through the proportional representation system of political parties based on the total number of seats secured by each political party.
It argued without any cogent evidence or logic that since the SIC did not participate in the elections as a political party, did not file any list of candidates under Section 104 of the Elections Act, 2017, and did not dispute the election program issued by the ECP for the elections held on 8.2.2024, therefore SIC cannot be allotted reserved seats.
However, the order fell short of answering the fundamental question that kept coming up repeatedly during the entire proceeding of the case: under which provision of the constitution can the leftover reserved seats be allotted to other political parties in the parliament?.
This question remained unanswered during the entire proceeding of the case and by the impugned judgment, as the constitution did not assume that such a scenario would ever come into existence by any stretch of the imagination.
The decision was lacking the imagination to such an extend that instead of sighting the constitutional provision which authorize the Election Commission to allot leftover seats to the existing political parties, it used all force of its argument proving that these leftover seats could not be allotted to independent therefore, with or with reasons these seats will be given to existing political parties in the parliament as spoil of war.
The judgment also did not take into account the fundamental rights of the people of Pakistan, which grant them the right to choose their representatives without being subjected to fear, intimidation, and with free will. The judgment failed to appreciate that the people had voted for and elected the independent candidates with full knowledge and understanding that those “forced to be independent” were actually nominated by the PTI and consciously and willingly mandated them to represent them in the parliament. It failed to grasp the generality of the constitution and, on the basis of a few useless notifications and its jumble of interpretations and non-interpretations of law and rules, it nullified the will and mandate of over 120 million voters.
The judgment also failed to cite any express provision of the constitution that specifically forbade independents from joining a party that either did not contest the elections or did not have a single member in the parliament.
However, it admitted between the lines that independents had the right to join the SIC but argued that even then, SIC could not qualify for reserved seats. This line of argument, however, was not supported by any specific provision of the constitution but was based on verbosity and baseless conclusions. Its argument that all thirteen members of the larger bench did not give relief to SIC was based on an utter lack of wisdom and deeper appreciation that the other eleven members, in fact, gave the SIC relief that was much more than it asked for.
Though we all know that this judgment, regardless of its strengths and weaknesses, has no bearing or consequences on the majority decisions of the 8+3 judges, the fact remains that it would provide much-needed fodder and gunpowder to the government to undermine and weaken the strength and credibility of the majority judgment. This judgment will also stoke a war of words and narratives between the political parties in the opposition and the government, providing much-needed arguments to parliament to bash the Supreme Court in its subsequent sittings.
It would also provide fodder to the demanding media and become a discussion point on prime time talk shows for a week or so before dying down. However, when the Supreme Court resumes its sitting after summer vacations, the first thing it would have to address would be the proposed amendment in the Election Act, 2024, which by then would retrospectively have excluded the allocation of reserved seats from the purview of the Supreme Court.
By Qamar Bashir
Former Press Secretary to the President
Former Press Minister to the Embassy of Pakistan to France
Former MD, SRBC
