ISLAMABAD: The Supreme Court of Pakistan on Monday live-streamed proceedings of the high-profile reserved seats case for the first time, as an 11-member constitutional bench resumed hearings on review petitions filed by the Election Commission of Pakistan (ECP), Pakistan Muslim League-Nawaz (PML-N), and Pakistan Peoples Party (PPP) against a previous ruling that declared 39 PTI-backed candidates eligible for reserved seats.
Justice Jamal Khan Mandokhail, a member of the bench, raised significant questions about the Pakistan Tehreek-e-Insaf (PTI) aligning with the Sunni Ittehad Council (SIC) after the party was stripped of its electoral symbol just weeks before the February 2024 general elections.
He remarked that the current constitutional and legal controversy around reserved seats might have been avoided had PTI-backed independent candidates not merged with a party that did not contest the elections.
The hearing was conducted by an 11-judge bench headed by Justice Aminuddin Khan. Other members included Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan, Shahid Bilal Hassan, Muhammad Hashim Khan Kakar, Salahuddin Panhwar, Aamer Farooq, and Ali Baqar Najafi.
Justices Ayesha A. Malik and Aqeel Ahmed Abbasi had initially been part of the 13-member bench that began hearing the review petitions on May 6 but later recused themselves. They had declared the petitions inadmissible. Justice Ayesha also lodged a formal complaint with the Chief Justice of Pakistan (CJP) Yahya Afridi about her dissenting note not being published on the court’s website.
During Monday’s session, Justice Mandokhail questioned the legitimacy of SIC’s claim to reserved seats, noting that the party had not contested the elections and could not therefore be considered eligible under constitutional provisions. “A political party does not contest elections, its candidates do. An election symbol is only for public recognition,” he observed, adding that the party’s absence from the ballot should have disqualified it from claiming proportional representation in the National Assembly.
He further questioned the effectiveness and neutrality of the Election Commission of Pakistan in the matter, stating that the ECP had failed in its constitutional duty to fairly allocate reserved seats and ensure transparency. According to Justice Mandokhail, the ECP’s handling of the situation warrants close scrutiny by the court.
The bench had in its short order on July 12, 2024, declared that 39 of the 80 PTI-backed independent MNAs were returned candidates of the PTI. That ruling set the PTI up as the single largest party in the National Assembly. However, the ruling was never implemented by the National Assembly, and the ECP subsequently objected to the decision.
Monday’s hearing marked the first time the Supreme Court live-streamed its proceedings, following a request by SIC which was granted last week. The live-stream was available via the Supreme Court’s official YouTube channel, allowing the public to observe the legal arguments and judicial observations in real time.
Representing the affected women candidates from the PPP and PML-N, senior counsel Makhdoom Ali Khan concluded his arguments during the session. He argued that the affected legislators had been de-notified without notice, violating their right to a fair hearing. Justice Mazhar, however, reminded the court that the earlier Supreme Court ruling had already struck down the ECP notifications.
Khan contended that the Supreme Court’s earlier decision had failed to account for Article 255 of the Constitution, which limits challenges to election outcomes to election tribunals. He said the court had overstepped its jurisdiction by addressing reserved seat allocations directly. Justice Mandokhail dismissed the relevance of Article 255 in this context, pointing out that reserved seats were assigned on the basis of proportional representation, not contested elections.
At one point, Justice Musarrat Hilali questioned whether SIC could be eligible for reserved seats at all. “How can a political party claim reserved seats when it did not win even one seat in the election?” she asked. PPP’s lawyer confirmed that SIC had not contested the election, and even its chairman, Sahibzada Hamid Raza, had run as an independent.
Justice Mandokhail added that SIC “could have become a parliamentary party,” but it could not be allocated reserved seats under the law. He said that many of the problems being litigated stemmed from the decision of PTI-affiliated independents to align with SIC instead of remaining independent or contesting under a different arrangement.
The court also discussed the implications of the Elections (Second Amendment) Act, 2024, which was passed after the July verdict. The law introduced a timeline that barred independent candidates from joining any party after a specified period. Critics argued that the amendment was aimed at limiting PTI’s influence in parliament by blocking its post-election alignment with SIC.
Justice Afghan noted that the Constitution does not permit amendments to core democratic structures, including the proportional seat allocation system, through legislative maneuvers. Makhdoom Ali Khan insisted that under Article 187 of the Constitution, the Supreme Court has the power to ensure complete justice, including revisiting its prior decisions through review petitions.
Justice Mandokhail responded with skepticism, questioning whether the concept of “complete justice” could be extended to third parties not even listed as respondents in the case. The CJP had previously stated in another judgement that the court’s power to deliver complete justice should be used cautiously.
Justice Bilal also questioned whether PTI, which was not a party to the review case, could legally benefit from the ruling. Makhdoom responded that while PTI was not listed as a respondent, the ruling directly impacted its affiliated candidates. CJP Afridi also noted that PTI was not formally a party to the case.
The court also addressed the flawed implementation of electoral documentation. Justice Mandokhail pointed out that presiding officers had not completed Form-33s — which record candidate affiliations — correctly. He stated that 41 of the PTI-backed independents had declared their affiliation with PTI in their nomination documents.
Justice Mandokhail also dismissed the notion that lack of an election symbol could dissolve a political party’s status. “A party does not cease to exist because it has no symbol,” he said, adding that the symbol is only a tool for voter clarity.
The SIC had also requested the court to delay hearings until the challenges to the 26th Amendment were resolved and to include judges from the original bench. However, the court rejected this request, stating that review petitions could be heard by a smaller bench, and that inclusion of specific judges was not mandatory.
At the end of Monday’s hearing, SIC’s lawyer Faisal Siddiqui argued that the opposing parties had submitted written responses and had therefore lost their right to rebuttal. Justice Aminuddin said it would be the court’s decision whether to allow further arguments.
The court adjourned the hearing until Tuesday, when Siddiqui is expected to present his full arguments.
In its detailed July 2024 verdict authored by Justice Mansoor Ali Shah, the court had blamed the ECP for “unlawful acts and omissions” that created confusion for voters and candidates and undermined the electoral process. The court had called on the commission to act as an impartial institution and uphold its constitutional role as a guarantor of fair elections.
On September 14, the Supreme Court issued a clarification warning the ECP for failing to implement the July ruling. A subsequent clarification in October reiterated that changes made in the Elections Act 2017 through the August 2024 amendment could not override the reserved seats judgement.
The PTI has since filed a separate petition challenging the constitutionality of that amendment and is also pursuing legal remedies regarding the Supreme Court’s earlier decision to revoke its election symbol ahead of the general elections. Those cases are pending before other benches of the court.
