Detailed judgment issued: SC says ECP ‘unlawfully’ denying major party its recognition

ISLAMABAD: The Election Commission of Pakistan (ECP) has been asked to issue directions or orders under Article 218 (3) of the Constitution read with Sections 4 and 8 of the Elections Act to undo the effects of its earlier unlawful acts and omissions and restore Pakistan Tehreek-e-Insaf (PTI) to its constitutional right as a parliamentary party and its entitlement to reserved seats proportionate.

The eight judges, on Monday, announced much-awaiting detailed reasoning of their short order passed on July 12, 2024. Their judgment maintained that “an election dispute is fundamentally different from other civil disputes, as it is not solely a dispute between two contesting parties but a proceeding where the constituency itself is the principal interested party.”

Justice Yahya Afridi has also released his note. He stated that the PTI fielded its candidates for seats in the National Assembly and Provincial Assemblies in the General Elections 2024. But none was allowed or recognised by ECP to contest elections for the general or the reserved seats as the candidate of PTI. And yet, for reasons not known, the matter has not been agitated by PTI before this Court.

SC says ECP’s unlawful acts, omissions caused confusion, prejudice to PTI

He noted that the instant case proceeding spanned over a month with eight long hearings commencing from the 3rd June, 2024 to the 12th July, 2024, an application was filed by PTI and Barrister Gohar Ali Khan for their impleadment, as interveners, and that too, to assist this Court in the present appeals. Interestingly, there was no specific prayer for a definite declaration in favour of PTI for allotment of reserved seats for women and non-Muslims.

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 seven 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.

Seventy-page judgment, authored by Justice Mansoor, declared that the previous unlawful acts and omissions (by ECP) render its December 22, 2023 ultra vires the Constitution, without lawful authority and of no legal effect.

It said that the PTI, its candidates and the electorate should not be made to suffer or be prejudiced by the unlawful acts or omissions of public functionaries, namely the returning officers and the Commission. Given that they have been deprived of their constitutional right to proportional representation in the reserved seats due to these unlawful acts and omissions, they are entitled, by virtue of an obligation of justice (ex debitojustitiae), to be restored to that right and placed, insofar as possible, in the same position they would have been if such unlawful acts and omissions had not occurred.

The judgment noted that the decision by Supreme Court (three-judge bench) on 13 January 2024 in the matter of intra-party elections of PTI on the very day that was fixed for submission of party certificates (party tickets) and allotment of the election symbols as per the Election Programme, and that too without clarifying that the said decision did not affect the electoral status of PTI and its candidates, also contributed in causing confusing and prejudice to PTI, its candidates and the electorate.

The judgment clarified that the PTI, which has been granted relief in the present case, is before us with an application for its impleadment as a party to the case.

It said that while doing complete justice in the exercise of its general power under Article 187 (1) of the Constitution, this Court is not handicapped by any technicality or rule of practice or procedure, nor is the exercise of this power by the Court dependent on an application by a party.

The detailed judgment of the eight judges declared the Explanation in Rules 94 of the Election Rules ultra vires to the Elections Act, 2017 and the 1973 Constitution. The Explanation to Rule 94 of the Election Rules, being beyond the scope of Section 215(5) of the Elections Act and inconsistent with the provisions of Articles 51 (6) (d) and (e) and 106 (3) (c) of the Constitution, is declared ultra vires the Elections Act and the Constitution, thus void and invalid.

The Commission has been asked to calculate the share of proportional representation of PTI and other political parties in the reserved seats accordingly. The Court underlined that the principle of holistic and harmonious reading of closely interlinked provisions of the Constitution requires that the provisions of paragraphs (d) and (e) of Article 51 are to be read not only in conjunction with Article 63A (2) but also with Article 17 (2) of the Constitution, which is also closely related thereto.

We find that the right to so many of the reserved seats that are proportionate to the general seats won by a political party is also an integral part of the right to form a political party, as this right also gives the “life and substance” to the said named fundamental right. Therefore, denial of the right to reserved seats proportionate to the general seats won by it would violate the fundamental rights of a political party guaranteed by Article 17(2) as well as the fundamental right to vote of the electorate that have voted for such political party guaranteed by Article19 of the Constitution, said the judgement.

It said; “We all (us eight and our three colleagues) agreed that due to unlawful acts and omissions of the Returning Officers and the Commission, PTI, its candidates and the electorate have suffered the loss of some of their constitutional and statutory rights, particularly their right to proportional representation in the reserved seats. However, we differed on how we could, by virtue of an obligation of justice (ex debitojustitiae), restore them to that right and place them, insofar as possible, in the same position they would have been if such unlawful acts and omissions had not occurred.

“Our colleagues (Hon’ble the Chief Justice and Justice Jamal Khan Mandokhail) have formed the opinion that “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 PTI returned candidates. Whereas our colleague (Justice Yahya Afridi) is of the view that “[a] candidate for a seat in the National Assembly or the Provincial Assembly, who in his/ her nomination paper has declared on oath to belong to PTI and duly submitted a certificate of the same political party confirming that he/ she is the nominated candidate of PTI for the respective constituency, shall remain so,… unless he/ she submitted a written declaration to the Election Commission of Pakistan or Returning Officer to be treated as the candidate of another political party or as an independent candidate”. We respect their opinions but disagree.

It said that the observations of Justice Aminud Din Khan and Justice Naeem Akhtar Afghan, in their dissenting note, do not behove Judges of the Supreme Court of Pakistan. They had written; “[i]f the said 39 plus 41 persons take any step on the basis of this judgment which is not in accordance with the Constitution, they may lose their seats as returned candidates on the basis of violation of the Constitution”, and that “[a]ny order of the Court which is not in consonance with the constitutional provisions is not binding upon any other constitutional organ of the State.”

The judgment said: “They may strongly express divergent opinions and make comments on each other’s views, highlighting reasons why they believe other Members have erred.”

Copyright Business Recorder, 2024