ISLAMABAD: The Supreme Court censured the Election Commission of Pakistan (ECP) over confusing its July 12 order on reserved seats, and warned of consequences if not implemented forthwith.
The eight judges, who on July 12 through a short order favored PTI, here Saturday issued the clarification on the applications of Pakistan Tehreek-e-Insaf (PTI) members and the ECP.
The order said; “The attempt by the Commission to confuse and cloud what is otherwise absolutely clear as a matter of the Constitution and the law must therefore be strongly deprecated. The list required to be issued by the Commission in terms of paragraph 8 (read with paragraph 10) of the Short Order is nothing more than a ministerial act, for the information and convenience of all concerned, and has no substantive effect.”
PTI files application in SC to become party in reserved seats case
It warned; “The continued failure of, and refusal by, the Commission to perform this legally binding obligation may, have consequences. This obligation must be discharged forthwith.”
A Full Court of 13 judges on July 12, 24 by majority of 8 to 5 had declared that the persons, who contested general elections on PTI tickets, were and are of that political party and thus, members of the parliamentary party of PTI in the National Assembly and Provincial Assemblies, for all constitutional and legal purposes.
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, also declared that 39 returned MNAs, out of 80 returned candidates, who in their nomination forms and affidavits mentioned PTI are the returned candidates of that political party, while the remaining 41 candidates shall, within 15 days, file a statement duly signed and notarised stating that he or she contested the General Election as a candidate of the PTI. 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.
The political party after the filing of a statement, 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.
The order said in case the Commission or PTI need any clarification or order shall file an appropriate application in chambers. Therefore, the PTI and the Commission approached the majority judges for clarifications, which say that it was categorically declared in paragraph 8 of the Short Order that on filing the requisite statement and its confirmation by the political party concerned, the seat secured by such candidate shall be forthwith deemed to be a seat secured by that political party. Therefore, upon submission of the declarations and certifications, the position of the returned candidates (now respectively MNAs and MPAs) immediately and ipso facto stood determined and fixed as a matter of law as on those dates and no subsequent act can alter what became, on the respective dates, past and closed transactions.
The order also said that in paragraphs 4 and 5 of the Short Order it has been categorically 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 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, PTI was and is a political party, which secured or won (the two terms being interchangeable) general seats in the National and Provincial Assemblies in the General Elections of 2024 as provided in that Order. It noted that in a number of notices issued by the Commission to the PTI through Barrister Gohar Ali Khan, it identified the latter as the chairman of PTI. It would be completely illogical to assume that a political party, a juristic person, is fully functional yet there are no natural persons who are either de facto or de jure performing its functions or running its affairs.
The certifications required to be issued by a political party (here the PTI) and filed with the Commission in terms of paragraphs 8 and 10 of the Short Order have, as per the record placed before us in relation to the returned candidates (now respectively MNAs and MPAs) in the National and the Sindh, Punjab and Khyber-Pakhtunkhwa provincial assemblies, been issued under the signatures of Barrister Gohar Ali Khan and Omar Ayub Khan, who are identified therein as being, respectively, the chairman and secretary general of the PTI.
It declared that there could have been no conceivable doubt that the certifications referred to above were correct and valid in terms of the Short Order, and the continued denial and refusal of the Commission to accept the same, as and when filed, is constitutionally and legally incorrect and may expose the Commission to such further or other action as may be warranted in terms of the Constitution and the law.
The order further said putting together the record placed before us, and considering the same in the light of the Short Order, leaves in little doubt that the clarification sought by the Commission in terms of the CMA 7540/2024 is nothing more than a contrived device and the adoption of dilatory tactics, adopted to delay, defeat and obstruct implementation of the decision of the Court. This cannot be countenanced.
The Commission cannot approbate and reprobate, taking whatever (shifting) stance as it desires and as may seem to suit its immediate purposes for the moment.
Copyright Business Recorder, 2024
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