The Supreme Court on Monday issued the detailed verdict for its July 12 short order in the reserved seats case, which had denied petitioner Sunni Ittehad Council (SIC) any share in reserved seats while granting the same to the Pakistan Tehreek-e-Insaf (PTI) after declaring it a parliamentary party.
The 8-5 majority verdict of a full court bench had significantly altered the parliamentary strength of all parties, denying the ruling coalition a two-thirds majority required to pass constitutional amendments. In the time since the short order was issued, the apex court also issued a “clarification” on the request of the Election Commission of Pakistan (ECP), warning it of “consequences” if it did not implement the ruling and recognize independent candidates who had pledged allegiance to the SIC as lawmakers of the PTI.
Authored by senior puisne Justice Mansoor Ali Shah, the majority verdict is supported by Justices Munib Akhtar, Muhammad Ali Mazhar, Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan. Chief Justice of Pakistan (CJP) Qazi Faez Isa and Justice Jamal Khan Mandokhail had penned a minority judgment, while Justices Aminuddin Khan and Naeem Akhtar Afghan had authored a dissenting note and Justice Yahya Afridi had outright dismissed the SIC petition.
In its detailed verdict, the Supreme Court noted that 11 of 13 judges had declared the PTI a parliamentary party but had differed on the “justice” due to the party as a consequence of the Election Commission of Pakistan (ECP)’s interpretation of a judgment denying the PTI an electoral symbol over its contested intra-party elections.
The 70-page judgment makes clear that it is the responsibility of the judiciary to intervene “when election authorities engage in actions … such as unlawfully denying the recognition of a major political party and treating its nominated candidates as independents.” Such actions, it states, “significantly infringe upon the rights of the electorate and corrode their own institutional legitimacy.” In this scenario, the order asserted, the court’s “power to do ‘complete justice’ is a critical tool in preventing democratic backsliding and protecting democracy effectively.”
A key component of the judgment is the criticism of the ECP’s actions, with the judgment expressing doubts over its power to reject the results of intra-party elections and raising reservations over how such an issue could “trump the fundamental rights of citizens to vote and of political parties to effectively participate in and contest elections through obtaining a common symbol for their candidates, guaranteed under Articles 17(2) and 19 of the Constitution.” However, the judgment stopped short of commenting further as the matter is sub judice due to a review petition filed by the PTI.
The verdict outlines various “unlawful acts and omissions” of the ECP, maintaining it had “caused confusion and prejudice to PTI, its candidates and the electorate who voted for PTI.” In this regard, it said the PTI’s nominated candidates were “wrongly” shown as independent candidates by returning officers and “wrongly” notified as independent returned candidates upon winning general elections.
The order also reiterated aspects of its earlier “clarification,” maintaining that Gohar Ali Khan was “de facto” chairman of the PTI and as such the party had a governance structure that could validate the certificates of independent candidates who wished to claim allegiance to the PTI.
Continuing its censuring of the ECP, the apex court ruling noted the ECP was tasked with “ensuring the transparency and fairness of elections to maintain public trust in the electoral system.” This, it said was essential for the “legitimacy” of elected representatives and the “stability” of the political system. “The Commission must uphold democratic principles and the integrity of electoral processes by ensuring that elections truly reflect the will of the people, thereby preserving the democratic fabric of the nation,” it said.
“Unfortunately, the circumstances of the present case indicate that the Commission has failed to fulfil this role in the general elections of 2024,” read the ruling, stressing the ECP was a fundamental “guarantor institution” of democratic processes and must recognize the critical role it plays in a democracy. “Another matter that has surprised us during the proceedings of these appeals is the way the Commission participated in and contested the matter before us as a primary contesting party against SIC and PTI,” it said, noting the ECP’s prime function was to ensure free and fair elections in accordance with law and free of corrupt practices.
“This function of the Commission, ‘to organize and conduct the election’, as held by this court in Aam Log Itehad, is primarily executive, not judicial or quasi-judicial. However, as found in the said case, the Commission also performs some quasi-judicial functions,” read the judgment. “In the present case, several political parties made counterclaims regarding their right to the disputed reserved seats, and the Commission decided these counterclaims as an adjudicatory body,” it said, adding a body with quasi-judicial function cannot be treated as an aggrieved person if its decision is set aside or modified by a higher forum or by a court of competent jurisdiction.
“Such a body, therefore, does not have locus standi to challenge the decision of that higher forum or court. Nor, we may add, can such a body contest an appeal filed against its quasi-judicial decision by one of the rival parties as a primary contesting party,” it said. “In the present case, the Commission was a proper party to assist the court in effectually and completely adjudicating upon and settling all the questions involved in the case. It should have acted in this manner, not as a primary contesting party,” it added.
The ruling also expressed surprise at the en masse defections of former PTI candidates to the SIC, stating it was not satisfied at the reasons given for this. It said in a parliamentary system, independents cannot win with such a numerical majority and all votes cast were for the PTI.
Dissenting notes
The ruling concludes by expressing “disappointment” over a dissenting note penned by Justices Khan and Afghan, asserting their observations did not “behoove” judges of the Supreme Court. “After expressing their view that the order we passed on July 12, 2024 is not in accordance with the Constitution and that we ignored and disregarded its mandate, they observed that ‘[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,” it stated.
Stressing the judges were free to express their views and could “legitimately” differ on issues of fact and law, the ruling lamented that the manner in which they had done so “falls short of the courtesy and restraint required of judges of the superior courts.”
“What is more disquieting is that, through the said observations, they appear to have gone beyond the parameters of propriety by warning the 39 plus 41 (80) returned candidates and urging the Commission not to comply with the majority order, which is the decision of a 13-member full court bench of this court,” it said. “Such observations undermine the integrity of the highest institution of justice in the country and seem to constitute an attempt to obstruct the process of the Court and the administration of justice,” it added.