The eight judges of the Supreme Court that had issued the majority verdict in favor of the Pakistan Tehreek-e-Insaf (PTI) in the reserved seats case on Saturday disposed of an Election Commission of Pakistan (ECP) petition seeking further clarity, and warned of consequences if the order were not implemented forthwith.
The four-page order, that comes before the detailed verdict pending since July 12, noted that the PTI had submitted its own application in response to the ECP’s petition, and reiterated that the PTI “was and is a political party” under Article 106 of the Constitution.
The clarification noted that the PTI’s submissions had included several notices issued by the ECP to the PTI through Gohar Ali Khan, who had been identified as PTI chairman in the same. Additionally, it said, the PTI had provided the certifications required to be issued by a political party in relation to the returned candidates in the National and the Sindh, Punjab and Khyber-Pakhtunkhwa provincial assemblies and these had identified Gohar and Omar Ayub Khan as chairman and secretary general of the PTI, respectively.
In light of these submissions, read the order, there is “little doubt” that the clarification sought by the ECP was “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.” Stressing this could not be tolerated, it described the ECP application as “misconceived.” Further, it said, the ECP could not recognize Gohar as PTI chairman in one instance before turning around and purporting “to seek guidance from the court with regard to how the certifications are to be dealt with.”
“Furthermore, the [ECP], even if one were to consider the application in the most sympathetic light, has apparently forgotten the well-known de facto doctrine or rule, in terms of which the acts of a person who holds an office are protected even if there may be (and no such conclusion is reached here in relation to the PTI) any issue with the position de jure,” it added.
Additionally, it said, having issued notices to the PTI through Gohar Ali Khan as its chairman, the ECP had given recognition to both the party and the office-holder. “That sufficed absolutely for purposes of the short order,” it said, adding that It would be “completely illogical” to assume a political party was fully functional but had no individuals who were either de facto or de jure performing its functions or running its affairs.
“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,” it added.
The clarification order also noted that the short order had specified that any independent candidate that filed the requisite statement and its confirmation by the PTI would forthwith deem to have secured a seat for the party. Thus, it said, after the PTI’s submission of the declarations and certifications, the position of the returned candidates “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.”
“As per the position so determined, the said returned candidates were and are the returned candidates of PTI and thus members of the parliamentary party of PTI in the National Assembly and Provincial Assemblies concerned, for all constitutional and legal purposes,” it 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,” it said, adding that the continued failure of, and refusal by, the ECP to perform this legally binding obligation might carry consequences.