ISLAMABAD: The Supreme Court’s 11 judges ruled that Pakistan Tehreek-e-Insaf (PTI) is a political party and is entitled to reserved seats for women and non-Muslims in the National and provincial assemblies.
A Full Court of 13 judges, on Friday, announced five separate short orders, which detailed reasons to be recorded later. The Court on July 09 upon the completion of arguments of Sunni Ittehad Council (SIC) and PTI lawyers against the Peshawar High Court (PHC)’s verdict on reserved seats of women and non-Muslims had reserved the judgment.
In February 8 elections, over 80 PTI-backed independent candidates, after winning the polls, joined the SIC, which claimed seats reserved for minorities and women in the National and provincial assemblies.
However, the Election Commission of Pakistan (ECP) rejected the SIC’s plea. It then approached the PHC, which upheld the ECP’s decision; dissatisfied with this outcome, the SIC filed appeals before the apex court.
A larger number of PTI central leaders and workers were gathered in the Supreme Court premises and were jubilant and chanted slogans in favour of Imran Khan. They termed the verdicts as a victory of PTI.
Eight judges comprising Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Irfan Saadat Khan passed one set of order, while Chief Justice Qazi and Justice Jamal Khan Mandokhel released separate note. Similarly, Justice Yahya Afridi, Justice Aminud Din Khan, and Justice Naeem Akhtar Afghan wrote their own independent notes.
The order of eight judges set aside the PHC’s judgment and declared the ECP’s order on reserved seats ultra vires the constitution. They held that the PTI was and is a political party, which secured or won general seats in the National and Provincial Assemblies in the General Elections of 2024.
The two judges’ order also set aside the PHC’s judgment to the extent of excluding the PTI for calculation and allocation of reserved seats. They also held that the PTI as a Parliamentary Party is entitled to the reserved seats. Similar stance was taken by Justice Yahya Afridi in dismissing SIC’s appeal against the PHC verdict. However, Justice Amin and Justice Afghan simply turned down the SIC’s appeal and said detailed reasons be recorded later.
The eight judges set aside the PHC’s judgment dated 25.03.2024 to the extent it is or may be inconsistent with this Order or the detailed reasons. They declared the ECP’s order dated 01.03.2024 ultra vires the Constitution, without lawful authority and of no legal effect.
They also held that notifications (of various dates), whereby, the persons respectively mentioned therein (being the persons identified in the Commission’s notification No F.5(1)/ 2024-Cord dated 13.05.2024) have been declared to be returned candidates for reserved seats for women and minorities in the National and Provincial Assemblies are declared to be ultra vires the Constitution, without lawful authority and of no legal effect, and are quashed from 06.05.2024 onwards, being the date an interim order was made by the Court in CPLA Nos 1328-9 of 2024, the leave petitions out of which the instant appeals arise.
It was declared that the lack or denial of an election symbol does not in any manner affect the constitutional and legal rights of a political party to participate in an election (whether general or bye) and to field candidates and the Commission is under a constitutional duty to act, and construe and apply all statutory provisions, accordingly.
It is declared that for the purposes, and within the meaning, of paragraphs (d) and (e) of clause (6) of Article 51 and paragraph (c) of clause (3) of Article 106 of the Constitution, the PTI was and is a political party, which secured or won general seats in the National and Provincial Assemblies in the General Elections of 2024.
The eight judges noted that during the hearing of instant appeals, on 27.06.2024, the ECP counsel had placed before the Court a list of 80 returned candidates for the National Assembly (now MNAs), setting out in tabular form particulars relating to their election. He had made a categorical statement that the Commission stood by the data so provided to the Court. In particular, the List contained three columns marked as follows: (i) “Statement (on nomination form) given in declaration and oath by the person nominated (i.e., ‘I belong to’)”; (ii) “Certificate of party affiliation under Section 66 of the Elections Act, 2017”; and (iii) “Statutory Declaration/ affidavit accompanying Section 66 certificate”.
They said that in the peculiar facts and circumstances of the General Election of 2024, it is declared that out of the 80 returned candidates (now MNAs) those (being 39 in all and whose particulars are set out in Annex A to this Order) in respect of whom the Commission has shown ‘PTI’ in any one of the aforesaid columns in the List, were and are the returned candidates whose seats were and have been secured by the PTI within the meaning, and for purposes of provision of Article 51.
They further ordered that any of the remaining 41 returned candidates out of the aforesaid 80 (whose particulars are set out in Annex B to this Order) may, within 15 working days of this Order file a statement duly signed and notarized stating that he or she contested the General Election as a candidate of the political party specified therein. If any such statement(s) is/ are filed, the Commission shall forthwith but in any case within 7 days thereafter give notice to the political party concerned to file, within 15 working days, a confirmation that the candidate contested the General Election as its candidate.
A political party may in any case, at any time after the filing of a statement as aforesaid, of its own motion file its confirmation. If such a statement is filed, and is confirmed by the political party concerned, then the seat secured by such candidate shall be forthwith deemed to be a seat secured by that political party in relation to the provisions of Article 51.
The Commission shall also forthwith issue, and post on its website, a list of the retuned candidates (now MNAs) and seats to which this para applies within seven days after the last date on which a political party may file its confirmation and shall simultaneously file a compliance report in the Court.
The number of general seats secured by PTI shall be the total of the seats declared. The PTI shall be entitled to reserved seats for women and minorities in the National Assembly accordingly. PTI shall, within 15 working days of this Order file its lists of candidates for the said reserved seats and the provisions of the Elections Act, 2017 (including in particular Sec 104) and the Elections Rules, 2017 shall be applied to such lists in such manner as gives effect to this Order in full measure.
The Commission shall, out of the reserved seats for women and minorities in the National Assembly to which para 3 of this Order applies, notify as elected in terms of the Article 51 Provisions, that number of candidates from the lists filed (or, as the case may be, to be filed) by the PTI as is proportionate to the general seats secured by it in terms of paras 7 and 8 of the Court order.
The foregoing paras shall apply mutatis mutandis for purposes of the Article 106 Provisions in relation to PTI (as set out in para 5 herein above) for the reserved seats for women and minorities in the Khyber-Pakhtunkhwa, Punjab and Sindh provincial assemblies to which para 3 of this Order applies.
The order said in case the Commission or PTI need any clarification or order so as to give effect to this para in full measure, it shall forthwith apply to the Court by making an appropriate application, which shall be put up before the judges constituting the majority in chambers for such orders and directions as may be deemed appropriate.
The joint order of CJP Qazi Faez Isa and Jamal Khan Mandokhail stated that as the SIC did not contest the General Elections, and also did not secure a single seat in the National Assembly or any of the Provincial Assemblies nor submitted a list of its candidates for seats reserved for women and non-Muslims; therefore it is not entitled to any of the reserved seats in the National Assembly and in the Provincial Assemblies.
They upheld the PHC’s impugned judgment and the order dated 1 March 2024 of the ECP to such an extent.
The order said under Article 51(3) of the Constitution, the total number of seats in the National Assembly shall be 326, out of which 60 seats are reserved for women and 10 seats for non-Muslims. Such right of women and non-Muslims has been guaranteed by the Constitution. They shall be elected in accordance with the law through proportional representation system of political parties’ list of candidates on the basis of total number of general seats secured by each political party from the Province concerned in the National Assembly and the Provincial Assemblies, as provided by Article 51 (6) (d) and (e) of the Constitution. Therefore, they cannot be deprived of this right of theirs by leaving these seats vacant, and all reserved seats must be filled in, as provided by Article 224 (6) of the Constitution.
The impugned judgment of the High Court and the said order of the ECP to the extent of the proportional representation distribution of seats amongst the political parties which won and secured seats is also maintained; however, since the ECP calculated and allocated the seats to the parties by the exclusion of the PTI candidates, therefore, to such extent, the impugned judgment of the High Court and the order of the ECP are set aside.
It said that during the hearing, it transpired that a number of candidates had submitted their nomination papers declaring on Oath that they belonged to PTI supported by an affiliation certificate of the said party, though some did not submit affiliation certificates of PTI; however, since they stated on Oath that they belonged to PTI, and did not contradict themselves, they should be considered to be members of PTI in the National and the Provincial Assemblies.
The ECP by misinterpreting the judgment of this Court dated 13 January 2024, which was regarding non-holding intra-party elections in PTI, wrongly mentioned the said candidates of the PTI as independents in Form 33 of the Election Rules.
The ECP had no authority to declare validly nominated candidates of a political party to be independent candidates. Similarly, a candidate once declared himself/ herself as a candidate of a political party, could not subsequently resile from his/ her candidature of a particular party, after the last date of withdrawal of the nomination the petition are a continuation of election proceedings before the ECP, we can look into the vires of the decision of the ECP in the light of the provisions of Article 51(1)(d) and (e) of the Constitution read with sections 66, 67 and 104 of the Elections Act, 2017 to safeguard the interest of women and non-Muslims.
As a consequence whereof, the candidates who had submitted their nomination papers declaring that they belonged to PTI and had not filed a document showing affiliation with another political party before the last date of withdrawal of the nomination papers, should have been treated as the Parliamentary Party of PTI, but the needful was not done by the ECP. Consequently, the PTI as a Parliamentary Party is entitled to the reserved seats. The ECP should recalculate and reallocate the reserved seats amongst the political parties, including the PTI, as provided by Article 51 (6) (d) and (e) of the Constitution.
The candidates who had submitted their nomination papers by 24 December 2023, which was the last date of submission of nomination papers, and had declared themselves either as independent candidates or had left blank the relevant column in the nomination papers/ declaration and were elected shall be considered to be independents.
They hold that SIC is a registered political party and every independent member of the National Assembly and of the Provincial Assemblies has a right to join it. All those who joined the SIC are presumed to have done so out of their own free will. None of them claimed to have joined SIC because of any misunderstanding of any judgment, the law, compulsion, coercion or undue influence and it is not for this Court to presume otherwise.
“We must ensure that words are not read into the Constitution, nor to ascribe artificial meaning to commonly understood words. We must also abide by validly enacted laws and must not do anything either to hinder or facilitate a political party by ignoring the laws mandate.”
Copyright Business Recorder, 2024
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