ISLAMABAD: The Election Commission of Pakistan (ECP) asked the Supreme Court to review its short order (majority) and detailed reasoning on the reserved seats for women and non-Muslims.
The Commission, on Friday, filed petition for review of Supreme Court’s order dated 12-7-24 and the detailed judgment by eight judges’ bench, headed by Justice Syed Mansoor Ali Shah. It prayed the apex court to stay the operation of the impugned order till clarification is issued qua the effect of the Elections (Second) Amendment Act, 2024, upon the majority judges’ short order and the detailed judgment.
The ECP submitted it is not responsible for delaying the verdict by the SC as the short order of Court was implemented by notifying the 39, while for the remaining 41 returned candidate the Commission approached the apex court on July 25, which clarification was issued on September 14.
It contended that the majority judgment has overlooked some important aspect of the matter; the error in the Order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the Order the conclusion would have been different.
The Commission informed that it has approached the apex court as an appellant in the number of cases and has also contested appeals on Court notice as primary contesting party. Therefore, the role of the ECP is two pronged, first, to assist the Court as a constitutional body and as regulator, and second, to defend its actions and orders passed.
It explained that under the theory of merger any rights created during the subsistence of proceedings remains subject to the final outcome of the said proceedings. It stated that once the Supreme Court restored ECP’s order dated 22.12.2023, any action taken by Gohar Ali Khan as purported chairman of the PTI during the interregnum (22-12-23 to 13-01-24) stood vanished and lost sanctity, both as dejure and as de-facto. Therefore, any certificate issued by Gohar Ali Khan on behalf of the PTI is not covered by the doctrine of de-facto and thus, there were no validly fielded candidates by PTI.
The ECP submitted that the majority judges’ short order allowed 41 candidates [listed in Annexure B of the short order deemed independent] to join any political party on the condition that such candidate provide a confirmation to the effect that the candidate contested the General Election as such party’s candidate and a corresponding confirmation be filed by the political party. However, in the detailed reasoning, the Court has limited such confirmation to single political party i.e. PTI. This direction is at complete deviation from what was earlier decided by virtue of the short order dated 12.07.2024.
It stated that the apex court has accepted that the SIC, which has not complied with the requirements of law is not entitled to the reserved seats for women and non-Muslims.
The Commission contended that the PTI even if recognised as a political party, failed to comply with the provisions of law in as much as the party certificates were never issued by duly elected and recognised party head. Such was the mandatory requirement of law as contained in the Elections Act, 2017 compliance with which is the duty of every political party.
The petition stated that the Article 51 of the constitution requires an independent candidate to join a contesting political party having won general seats within three days of the publication of his name in the official gazette, if his seat is to be considered towards the strength of that political party for the purposes of allocation of reserved seats. “Compliance with such requirements and the definitive deadline is mandatory. The order of this Court has not only reset the clock but expanded the time to 15 days by substituting words of the Constitution, something which is clearly not permissible under the well-established jurisprudence of this Court.”
It highlighted that the Court fell in error of law as well as fact while considering the 39 candidates listed in Annexure A to be returned candidates of PTI. As per election record, in numerous constituencies, multiple candidates claimed to be affiliated with PTI in their nomination papers, yet were not later awarded a PTI party ticket.
The Commission contended that the explanation to Rule 94 of the Election Rules, 2017, is not ultra-vires the Constitution or the Elections Act, 2017 as it only applies to those parties which have been allotted prescribed symbol.
It submitted that the Court in its detailed reasoning has collaterally nullified orders which had been implemented, effectuated and created third party rights, although the same were neither under challenge nor were assailed anywhere before superior courts of the country. This Court effectively nullified the orders dated 22.12.2023 of the ECP and 13.01.2024 of the Supreme Court. It added that the judgment dated 13.01.2024 is under review which is still pending while Para-37 of the detailed reasoning, has collaterally decided the fate of the review in these proceedings – collateral attack cannot be done as the majority itself recognized in Para-116 of the detailed reasoning.
It said that the clarification issued by majority is outside the ambit of the short order, is beyond the Constitution and the law, as it was issued without notice to the review petitioners, without any hearing, without sharing of the reply filed by PTI. Such mode and manner of rendering order is clearly violative of Article 10A of the Constitution and universally recognised maxim of “audialtermpartem”.
The ECP submitted that Article 17 of the Constitution applies to all the parties equally. The treatment of un-equals as equals is also discrimination. It highlighted that a party which failed to comply with the requirements of law should not be treated equally with a fully complaint party. A non-compliant party loses some of its rights under the law and the Constitution. A party which has not complied with the law is also not entitled to claim reserved seats under Article 51.
It is clearly reflected on perusal of the short order and detailed reasoning that PTI did not agitate their right to claim seat for themselves in any meaningful manner. The Court in their detailed reasoning by making reference to and relying upon claims made in PTI impleadment application has erred in law.
It submitted that the judgment of the majority is based on a number of presumptions and is heavily marred and influenced by presuming existence of certain facts which are not based on objective assessment. The determination cannot be made on the presumption that the voter when casting the vote for the returned candidate had knowledge that he was voting for the party, as there are number of factors which persuade a voter to vote for a particular candidate.
Copyright Business Recorder, 2024
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