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Official Citation: 2024 PLJ 89
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-12-31, officially reported as 2024 PLJ 89. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2024 Peshawar 89
Court Name: Peshawar High Court Judge(s):Ishtiaq Ibrahim, Ijaz Anwar, Syed Muhammad Attique Shah, Shakeel
JUDGMENT
Reported As: PLD 2024 Peshawar 89 Result: Petition dismissed Judgment
JUDGMENT S M ATTIQUE SHAH, J. Through this single judgment, we propose to decide the present Writ Petition No. 1272-P/2024 and the connected Writ Petition No.1339-P/2024 as both carry common questions of law and facts. Sunni Ittehad Council "SIC" etc/petitioners have asked for issuance of an appropriate writ for declaring that order dated 01.03.2024 of the worthy Election, Commission of Pakistan ("ECP"), rendered in the cases relating to the seats reserved for women and non-Muslims in the National and Provincial Assemblies, being nullity in the eye of law, is of no legal effect whatsoever. The order ibid purportedly declined the allocation of reserved seats to the petitioners and instead were allocated to other political parties. The petitioners have also asked for the issuance of an appropriate writ to direct the worthy ECP to allocate the ibid reserved seats to them on the basis of their strength in the National and Provincial Assemblies and also to issue election schedule for filling of those seats in accordance with law. Additionally, they have also challenged the vires of section 104 of the Elections Act, 2017 ("Act, 2017") on the ground of being ultra vires to the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"). 2. Undeniably, the candidates of Pakistan Tehreek-e-Insaf ("PTI''), after the ECP declared PTI's intra-party election as illegal, contested the general election for National and Provincial Assemblies held on 8th February 2024 as independent candidates and as such they all were notified as independent returned candidates while issuing the Notification dated 16.02.2024 by the ECP. In terms of Article 51 read with Article 106 of the Constitution, an independent returned candidate has
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to join any political party within three days of the issuance of notification. Accordingly, the independent candidates hacked by PTI opted to join the SIC in the following manner:-- a)National Assembly 86 MNAs b)Punjab Assembly 107 MPAs c)Khyber Pakhtunkhwa Assembly90 MPAs d)Sindh Assembly 09 MPAs After such absorption of the PTI backed independent candidates in SIC, present petitioners through four applications requested the worthy ECP for the allocation of reserved seats in the National and Provincial Assemblies. Initially, out of 226 total seats reserved in National and Provincial Assemblies, the ECP preserved 67 seats for women and 11 seats for non-Muslims (total 78 seats) while the remaining 148 reserved seats were allocated to other political parties and nominations of the returned candidates based on the priority list of the political parties were accordingly issued on 22.02.2024. These applications of the petitioners were taken up as case bearing No.F(14)/2024-Law-II and it was fixed for preliminary hearing on 27.02.2024. Similar applications of other parties viz. MQM-P, PPPP and PML(N) (respondents) filed for allocation of such seats were clubbed along with the aforesaid applications of the petitioners, and were decided together through the impugned order dated 01.03.2024 by the worthy ECP in the following terms:-- 33. Therefore, the Commission is of the view that in light of clear provisions of Article 51(6) of the Constitution read with Section 104 of the Elections Act, 2017 and Rules 92 and 94 of the Election Rules, 2017, SIC is not entitled to claim for the quota for reserved seats for women and non- Muslims due to having non-curable legal defects and violation of mandatory provision of submission of party list for reserved seats which is the requirement of law. The request of Petitioner No.1 is rejected and all the other petitioners from Serial Number 2-10 are partially accepted. The seats in the National Assembly shall not remain vacant and will be allocated by Proportional representation process of Political Parties on the basis of seats won by Political Parties. Office is directed to calculate the quota accordingly. Being aggrieved of the decision, the petitioners have filed the present petition. 3. The Division Bench of this court took: up the matter for hearing on 06.03.2024. After hearing the preliminary arguments of the learned counsel for the petitioners, the Bench formulated certain questions to be determined by the Court and put the learned Attorney General for Pakistan and learned Advocate General, Khyber Pakhtunkhwa on notice in terms of Order XXVII-A of the C.P.C. It also referred the matter to the worthy Chief Justice for the constitution of a larger bench as the case involved adjudication of intricate constitutional questions. With the approval of the worthy Chief Justice, the present Bench has been constituted. Contentions of learned counsel for SIC 4. Barrister Ali Zafar, representing the petitioners, began his arguments by presenting a brief recap of the events leading to the instant petition. He reiterated that against the entitlement of the petitioner (SIC) six applications by different persons were filed with the ECP. The issues raised were that the SIC is not a political, party, and thus, not entitled to claim reserve seats. The ECP proceeded in the matter under Section 04 of the Elections Act, 2017 to decide whether reserve seats could be allocated to SIC when it had neither contested the election as a political party, and nor did it file its list of candidates. A second limb of the contention before the ECP was the treatment to be meted out to reserved seats of which the SIC was found not entitled, if so found. The ECP, in its order of 04/03/24, through a unanimous verdict of 05 members found against the petitioner and held that it was not a party, therefore it could not claim reserved seats. On the question of the treatment to be meted out to the reserved seats, a 04 to 01 majority held that these seats should be distributed among other political parties contending for it. Instant petition impugns
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the order, and additionally, challenges the vires of Section 104 of the Elections Act, in case the court is inclined to treat its interpretation by the ECP as the only valid or possible interpretation. However, if section 104 is harmonized with Article 51, then it might find an acceptable place in the fold of legality. Having thus paraphrased the controversy for the court, learned counsel requested the bench to visit the questions it had framed in its previous order sheet. The questions were about jurisdiction of the court, standing of the petitioner, its claim for reserved seats in view of Article 51 read with Article 106 of the Constitution of Islamic Republic of Pakistan "Constitution" and section 104 of the Elections Act, 2017 "The Act" and whether non-filing of list of candidates by SIC within the time frame provided under section 104 of the Act for reserved seats was a curable defect in law? Learned counsel formally began his arguments on the issues enlisted above by first addressing himself to status of SIC as a political party. He submitted that any party enlisted with the ECP under the Elections Act, 2017 was a political party, and since SIC met the criterion of a registered political party as defined in the Act of 2017, hence being a political party for the purpose. Learned Counsel then proceeded to enumerate the legally established objectives that a political party could have such as contesting an election, forming an association, to propagate a political opinion, to go to the electorate for election, sit in opposition or form a government, and so forth. The counsel pointed out that the ECP, in its interpretation of the term, resorted to restrictive definition, and thus erred. Learned counsel next addressed himself to the rights of a political party under Article 17(2) of the Constitution. He argued that in multiple famous cases such Maulana Maududi's, Benazir's, Nawaz Sharif's case, and recently in the Bat-Symbol case, it has been held that it is the fundamental right of a person to participate in election, form a party or join one. That this right invests a person/party with penumbra rights to political activity without which the entire concept of representative governance is meaningless. He further added that in the recent case of Mr. Pervez Elahi, it was held that a party exists in and outside the parliament. Its members in the house form its parliamentary wing, and those out of it, its political wing. Learned counsel placed reliance and drew strength from judgments reported as Benazir Bhutto v. FOP 1988, Benazir Bhutto v. FOP 1989, Nawaz Sharif v. President of Pakistan 1993, and SCBA v. FOP 2023: He again reiterated his observation that the ECP had confused the concept of political and parliamentary party in its decision presently impugned. After that the counsel briefly visited the principles of interpretation significant for constitutional matters, and relevant to the case at hand. He argued that substantive provisions were to be construed in a manner so that it subsumed all ancillary matters falling under its influence. That provisions of the constitution and law were to be read to achieve a harmony of the constitution internally, and of the law with it. That the Constitution must.be interpreted in the most expansive way, with due regard for its purpose and normative intent through a dynamic, progressive and expansive approach. He concluded his submissions on interpretation by stating that a penal provision is to be construed strictly, rather than liberally. For his arguments on the point of interpretation, the counsel has relied on Sui Southern Gas Ltd. v. FOP 2018, Government of Sindh v. Dr Nadim Rizvi 2020, Dosso v. Stare 1957, F.B. Ali v. The State 1975. I.A. Shersvani v. Government of Pakistan 1991, Al-Jehad Trust v. FOP 1996, Masror Ahzan v. Ardeshar Cowasjee 1998, and Wukula Mahaz Barai Tahafuz Dastoor v. FOP 1998. The counsel further maintained that Article 51(6)(e) mandate that an independent joining a political party should be deemed as a seat won by the party. That accordingly, independent candidates joining SIC might be seen and received as seats won by SIC. He concluded by stating that section 104 of the Act placed no bar on demand for a list of candidates for reserved seats at a
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belated stage, and that the justice that was expected of the ECP under sections 4(1) and 4(3) of the Act might be done now. Attorney General for Pakistan and learned counsel representing the ECP. 5. Learned Attorney General began his submissions by reducing the controversy to two essential points: whether the petitioner was entitled to reserved seats under Article 51; if the answer was in the negative, what would be the manner of its allocation amongst the political parties; securing general seats in the National Assembly. Learned AG took the court on a brief but useful tour of the nature of our parliamentary system that it is a mixed and proportional representation system in that seats are open and reserved, and the latter are elected in proportion of the former. The AG formally began his arguments of the matter by posing a query as to whether a party that had not contested the election and was now joined by independents, could claim and receive share out of the reserved seats. He took the court briefly back to the distinction between a political party and a parliamentary party that members of a political party inside, the parliament forms its parliamentary wing, and outside the parliament, its political wing. He argued that in law as well as in parliamentary democracy, a political party, regardless of its manifesto, was formed for one purpose that was to participate in the election. Petitioner is a political party in the sense that it is registered with the Election Commission, but since it neither participated in the election nor won a general seat, it was not a party for the instant purpose. About the application of the mandate of Article 51 to the claim of the petitioner, the worthy AG submitted that the article mandated that a party must have won seat(s) in the assembly to qualify for the claim to reserved seats. That the proviso then says that in addition to the seats won in the general election, can the party claim the independents, and on their numerical strength, a portion of the seats reserved for women and minorities. He added that presence of a political party in the parliament can necessarily take place only when such political party had participated in the electoral process. Learned AG emphasized the point that a political party that refuses to participate or chooses not to participate in general election cannot subsequently contest for reserve seat. Article 51(6)(d) and sub -section (1) of section 104 do not conceive of a political party claiming reserved seats without having participated in election. He emphasized that Article 51(6)(d) says proportional representation on political parties list. Clearly, he argues, the article envisages for a party having submitted a list, and not a party who never took part in the election. In a mixed representation system, the parties offer their candidates for general election to the electorate. They are also offering the candidates who are on their list that they will also become member of the parliament and be making laws for the electorate. The candidates go through the scrutiny so nearly as possible as the candidates of general seats do, and such lists are then published before the general public/voter. If a political party chose not to submit a list at all, it can only mean one thing which is that the party was not expecting to win any number of general seats which would entitle it to the reserved seat. About the question of whether seats could be left vacant, the learned counsel Mr. Sikandar Bashir representing the worthy ECP assisted the court that the Constitution did not envisage vacancy, except under clause (4) of Article 224 when a, seat falls vacant within 120-days of the completion of the term of the assembly. If the SIC is found not entitled to the reserved seats for the reasons above, the independent candidates, should stand excluded from the total number of general seats in the National Assembly for the purpose of determination of share of each political party for reserve seats. In support of his submissions, the learned counsel for the ECP has referred to sub- Rule (2) of Rule 94 and Rule 95 of the Election Rules, 2017.
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Learned counsels for the Private-Respondents. 6. Messrs Farooq H. Naek learned Senior Counsel of Supreme Court of Pakistan, Barrister Hans Azmat, Muhammad Tariq Afridi, Amir Javed, Naveed Akhtar, Qazi Jawad Ehsanullah, Tariq Khan Afridi, Lajbar Khan Khalil Advocates, have addressed the main arguments. Learned counsel graciously walked the court through a paraphrased reading of Article 51. They explained that the constitutional scheme envisages two kinds of proportional representation i.e. on the basis of population for a general seat, and on the basis of representation in the assembly for reserved seats. They further added that general election is population based, whereas for the reserved seat of women and non-Muslims, the number of seats allocated in the National Assembly for each province and the country is constituency, respectively. Learned counsel remarked that election was provided for, governed by, and conducted under Article 51 and in accordance with the Elections Act of 2017. Election was to be conducted in accordance with law through proportional representation system of political parties list. Reserved seats were to be allocated on the basis of total number of general scats secured by each party from the province concerned in the National Assembly. First and the foremost is a list, when it is submitted, then, on the basis of number of general seats secured in the National Assembly, the reserved seats were to be allocated. They concluded that the petitioner SIC did not win any general seat in National Assembly, nor did it submit its list for reserved seats, so the question of eligibility for securing independents or reserved seats did not arise. The learned counsel for respondent No.4 requested the court for examination of jurisdiction for the matter. He argued that this Court lacks territorial jurisdiction to adjudicate upon the matter. Further, that parallel petitions impugning the same order of ECP are pending before High Courts of Sindh and Punjab. That to avoid conflicting findings, and for propriety, the best forum for the matter was the Apex Court, else the Islamabad High Court on territorial grounds. Placed reliance on Hassan Shahjehan v. FPSC 2017 to bolster the contentions. He further added that since no list was furnished nor priority of candidates was conveyed to the ECP till date, the question of entitlement to reserved seats did not arise. 7. Heard. Record perused. 8. From the aforesaid legal discourse, the following questions cropped up for determination of this Court. 1. Territorial Jurisdiction. 2. Whether SIC, a listed political party with a duly assigned election symbol but opted not to contest the election, can, now, when PTI backed independent candidates have Joined it, claim a share in the seats reserved for women? 3. What if we hold that SIC is not entitled to reserved seats for women and non-Muslims, then the allocations of reserved seats by the Election Commission amongst the political parties present in the Parliament were in accordance with the letter of the Constitution? 4. Vires of section 104 of the Elections Act, 2017. Territorial jurisdiction. 9. Determination of jurisdiction is the first step of any/all adjudications. A similarly structured question about territorial jurisdiction came up before the Apex Court in the case of Asghar Hussain[1]. The High Court of East Pakistan had dismissed a petition that impugned an order of the Tribunal/EC in respect of provincial constituency of East Pakistan. The august Apex Court allowed the appeal against the judgment of the High Court of East Pakistan in the following manner (terms):- "the decision given by the High Court of East Pakistan that it has no jurisdiction to issue a writ or a direction to the election Commission of Pakistan is thus unreasonable in law from every point of
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view. The election Commission is "a person" or "authority" which exercises in the Province of East Pakistan functions in connection with their affairs of the Centre namely, election to the office of President, National Assembly and the Provincial Assemblies and for holding a Referendum as provided for in the Constitution. In that, the Commission is subject to the jurisdiction of High Court under Article 98(2)(a)(i) notwithstanding that its main office and secretariat are located in the Province of West Pakistan". Likewise, in the case of Federal Government[2], the Sindh High Court was approached against a notification of the Federal Government whereby, on the recommendation of the Punjab Government, Ms. Ayan Ali, was prevented from departure at Karachi Airport for being enlisted in the Exit Control List. The matter eventually arrived at the Apex Court who in the aforesaid judgment rejected the arguments of the Federal Government relating to the territorial jurisdiction of Sindh High Court by relying upon the LPG's case and held as under:- "as regard the question of territorial jurisdiction, it hardly need emphasis that the impugned notification/memorandum has been Issued by the Federal Government which functions all over the country and since the respondent No.1 resides in the Karachi and has a right and choice to proceed abroad through Jinnah International Airport Karachi and in fact at least twice earlier she had proceeded to go abroad through Jinnah International Airport Karachi, though She was stopped owing to the earlier notification/memorandum and therefore, the embargo placed on her leaving the country has in fact taken place at Karachi, which prevention in all likelihood was to be repeated at Karachi in pursuance of the third notification/memorandum and thus giving rise to a cause of action against a third notification/memorandum at Karachi because of its taking effect there. It is now well settled that the Federal Government, though may have exclusive residence or location at Islamabad would still be deemed Junction all over the country". In the case of Messrs Al Iblagh limited[3] issue of territorial jurisdiction of the High Court was tackled in the following manner: - "The Central Government has set no a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case. It was further observed that: - "We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a Writ Petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for the decision of the Writ Petition filed by the appellant before it for decision on merits, in accordance with law". In the case of LPG Association of Pakistan through Chairman[4] the territorial jurisdiction of Hon'ble Lahore High Court was questioned on the ground that the contesting respondents were functioning at Islamabad; while the impugned notice had also been issued by the Commission at Islamabad and, as such, Hon'ble Lahore High Court had no jurisdiction to entertain the petition: However, Hon'ble Lahore High Court rejected the objection in the following terms:-- 6. From the judgments cited at the Bar on both the sides, the portions whereof have been extensively reproduced, the following ratio is deducible.-- (A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Provinces, shall still be deemed to function all over the country.
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(B) If such government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him. (C) This shall be more so in the cases where a party is aggrieved or a legislative instrument (including any rules, etc) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc, and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected: In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts. (D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience". 10. After thoroughly examining the above-referred case law, we have come to the conclusion that an action of a constitutional or federal authority that affects a person or group of persons in a particular province,…
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