Reserved seat women are selected, not elected: SC
By Nasir Iqbal
ISLAMABAD: A Supreme Court full-bench hearing 21 petitions challenging the 18th Amendment described on Thursday the process of nominating persons to seats reserved for women in legislatures as “selection, and not electionÂ” made on personal likes and dislikes of heads of parties.
Advocate M.A. Ghaffarul Haq, the counsel for Mohammad Ijazul Haq, the chief of his own faction of PML, argued that the procedure and proportional representation under Article 51(6-d) of the Constitution violated the requirement under Article 226 which called for election through secret ballot.
It may be mentioned that late Gen Ziaul Haq, the father of the petitioner, had nominated a Majlis-i-Shura of his choice to give a political foundation to his military dictatorship.
Justice Jawwad S. Khwaja asked whether the petitioner was not a son of a dictator when the counsel criticised the deletion of the requirement of intra-party elections earlier inserted into the Constitution through the 17th Amendment and said it would encourage dictatorial tendencies in political parties because the country’s history was replete with dictators.
“Let’s be conscious of our history. We all know elected democratic governments were ousted due to unconstitutional interventions,” the judge observed.
“Let’s not talk about the sons of dictators. The petitioners have every right to approach the Supreme Court,” interjected Justice Asif Saeed Khosa.
Chief Justice Iftikhar Mohammad Chaudhry said he appreciated that the petitioner in his personal right had come to the Supreme Court.
At the end of the proceedings, Justice Khwaja apologised for his outburst.
Ijazul Haq also challenged the renaming of NWFP as Khyber Pakhtunkhwa, saying that it would divide the national polity on linguistic and ethnic basis.
But the bench was of the opinion that it did not hurt basic features of the Constitution, especially when the provincial assembly had adopted a resolution demanding the renaming.
Article 51(6 d) of the Constitution reads: “Members to the seats reserved for women which are allocated to a province under clause (3) shall be elected in accordance with law through proportional representation system of political parties’ lists of candidates on the basis of total number of general seats secured by each political party from the province concerned in the National Assembly.”
Justice Khosa asked counsel Ghaffarul Haq to explain the procedure about the filling of seats reserved for women. “On the personal liking or disliking of the party head,” quipped the chief justice. He asked the counsel to cite a country where women were given representation in parliament under the same procedure. “You (the counsel) mean to say that the member of the National Assembly should be a chosen representative of the people and not the chosen representative of the party head,” Justice Khwaja said.
Justice Khosa asked the counsel if his client had challenged the 17th Amendment through which the proportionate representation system on reserved seats had been introduced in Article 17 of the Constitution. He said the issue he had highlighted concerned a difficult area because it was the cardinal principle of interpretation the Constitution was to make efforts to harmonise seemingly conflicting provisions.
The judge advised the counsel to separate the issue from his petition and bring out an independent challenge to the provision because the controversy being a serious one deserved a threadbare review by the court. “At the time when a voter is exercising his right of franchise he does not know which particular woman will be elected to fill the reserved seats on his vote because her name does not feature at the time of the elections,” Justice Khwaja said.
“Have the counsel ever explored which woman elected on the reserved seats is relative to which member of the political party,” Justice Khilji Arif Hussain asked. He said that all the women were relatives of the leaders of political parties.
Citing the fallout theory, Justice Javed Iqbal said that if the amendment was held to be unconstitutional women representatives would have to go home because they would lose their seats.