The Supreme Court on Saturday rebuked the “misconceived” request by the Election Commission of Pakistan (ECP) seeking clarification from the top court on its verdict in the reserved seats case and ordered the immediate implementation of its original directions.
On July 12, a 13-judge full bench of the apex court had declared that the opposition PTI was eligible to receive reserved seats for women and non-Muslims in the national and provincial assemblies, dealing a major setback to Prime Minister Shehbaz Sharif’s ruling coalition and potentially making the PTI the single largest party in both houses of Parliament.
The Supreme Court had also declared the PTI a parliamentary party. The majority judgement explained that 39 out of the 80 MNAs, shown by the ECP as PTI candidates, belonged to the party. The rest of the 41 independents would have to file duly signed and notarised statements before the commission within 15 days, explaining that they contested the February 8 general elections as a candidate of a particular political party.
The ECP had subsequently finally decided to implement the Supreme Court decision. Instructions were issued to the ECP’s legal team to identify obstacles in the implementation of the judgement so that further guidance could be sought from the top court. The ECP had raised concerns about who in the PTI should be contacted for verification, given the party’s lack of structure and unrecognised intra-party elections, suggesting that the commission might need to seek further directions from the court.
A written order from the apex court issued today on the ECP’s request seeking guidance on certain legal and factual issues said that considering all evidence placed before the court left “little doubt that the clarification sought by the commission … 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. Even on the application of elementary principles of law, the application filed by the commission is misconceived”.
The order said the PTI had attached many notices to it by the ECP which identified Barrister Gohar Ali Khan as the party chairman and there were PTI documents as well identifying him as the chairman.
Thus, the court said: “Having itself recognised Barrister Gohar Ali Khan as the chairman of PTI, the commission cannot now turn around and purport to seek guidance from the court with regard to how the certifications are to be dealt with. 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.
“Furthermore, the commission, 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 sufficed and the commission was duty-bound in terms of the Constitution to keep in mind that the admitted position [as stated before the court during the hearing of the appeals] is that the PTI was, and is, an enlisted political party.”
The order said that dissenting judges had also recognised Barrister Gohar’s validity as chairman, adding that this sufficed to act on the court’s reserved seats verdict.
“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. Saying … that a political party is an enlisted political party, fully functional for the purposes of its formation, yet there is no one that can perform its functions and run its affairs, amounts to blowing hot and cold in the same breath or, as noted, approbating and reprobating one and the same fact.
“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 warned.
On the issue of the reserved candidates themselves, the order noted that the court had “categorically declared” in its verdict that on filing the requisite statement and its confirmation by the political party concerned, the seat secured by such a candidate would immediately be deemed to be a seat secured by that political party.
“Therefore, upon submission of the declarations and certifications referred to above, 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.
“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.
“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 … is nothing more than a ministerial act, for the information and convenience of all concerned, and has no substantive effect. Nonetheless, the continued failure of, and refusal by, the commission to perform this legally binding obligation may, as noted, have consequences. This obligation must be discharged forthwith,” the order stated.
Last month, Supreme Court senior puisne judge Justice Mansoor Ali Shah had stressed that there could be no possibility of the top court’s orders going unimplemented as such a scenario would amount to a constitutional violation and the executive had no choice but to comply with court orders.
The remarks had come after he similarly emphasised that the apex court’s orders were not merely recommendations or advisories, but legal mandates which must be followed. Legal observers attached great significance to these observations, particularly against the backdrop of recent legislation by parliament aimed at circumventing the Supreme Court’s July 12 verdict in the reserved seats case.
The government had bulldozed a controversial election law, apparently aimed at circumventing the Supreme Court verdict on reserved seats and sapping the expected strength of PTI in Parliament, through both houses of parliament.
The law had passed despite fierce protest by PTI members, who later approached the top court against the move.
Changes to the election law are set to become the latest legal battleground between the government, the opposition, and the judiciary.
Legal experts say the ramifications of this wrangling could even extend to and redefine the scheme of separation of powers between the legislature, executive and judiciary, which in itself is quite a thorny issue.
Implications for constitutional package
Today’s order also comes amid a highly anticipated “Constitutional Package” that aims to — among other things — fix the tenure of the chief justice of Pakistan at three years seemingly set to be introduced in parliament.
While on the face of it, it is still not certain whether the ruling coalition has the numbers required to secure the passage of the constitutional amendment — which requires the assent of at least two-thirds of lawmakers — around 224 votes out of a total of 336 members in the lower house. But as of now, it appears that the government is short of at least a dozen votes in both houses.
However, if posturing by government spokespersons is anything to go by, the Shehbaz Sharif administration seems confident it will be able to secure the required numbers of vote to have the amendment passed.
Despite attempts by opposition parties at enforcing strict discipline among their ranks, it is rumoured that the government had managed to win over some PTI-allied lawmakers who are apparently willing to jump ship to lend their support to the ruling coalition.
However, PTI lawyer Ali Uzair Bhandari said the apex court had clarified in today’s order that all MNAs who the ECP had declared as independents were PTI MNAs.
“If such MNAs now vote in favour of a constitutional amendment, the vote will be hit by Article 63(A) and will not be counted,” he said.
The apex court had ruled in May 2022 that the votes of defecting lawmakers will not be counted. The verdict by the larger bench of the apex court was a 3-2 split decision, with a majority of the judges not allowing lawmakers to vote against party line in four instances outlined under Article 63-A.
These four instances are the election of prime minister and chief minister; a vote of confidence or no-confidence; a Constitution amendment bill; and a money bill.
Meanwhile, PML-N Senator Irfan Siddiqui said during an interview on Geo News show ‘Naya Pakistan’ that the package would be presented tomorrow in parliament after going through the federal cabinet.
“We will try and present and pass the amendments tomorrow,” he said. Questioned about the implications of today’s court order on the status of independent candidates associated with the PTI, Siddiqui said: “We think even if such decisions come, until the ECP denotifies or notifies or determines their (independent MNAs) position then their status in our eyes remains the same.”
He said of the 41 independent MNAs, there were some who had not submitted documents showing their affiliation with the PTI.
On whether the government had the numbers to pass the package in parliament, Siddiqui said: “We think our numbers are complete … we are comfortable in both houses and we will achieve the required numbers.”
Siddiqui said the package was still not finalised and was undergoing consultations.
Soon after, PTI Senator Ali Zafar rubbished the notion that any party lawmakers had not shown their affiliation with the party. He said as per his knowledge, most of them had and only the high-profile notable leaders had not such as Omar Ayub and Barrister Gohar Ali Khan.
The reserved seats issue
In a 4-1 verdict in March, the ECP had ruled that the Sunni Ittehad Council (SIC) was not entitled to claim quota for reserved seats “due to having non-curable legal defects and violation of a mandatory provision of submission of party list for reserved seats”.
The commission had also decided to distribute the seats among other parliamentary parties, with the PML-N and the PPP becoming major beneficiaries with 16 and five additional seats while the Jamiat Ulema-i-Islam Fazl (JUI-F) was given four. Meanwhile, the verdict was rejected by the PTI as unconstitutional.
Later the same month, the Peshawar High Court (PHC) had dismissed an SIC plea challenging the ECP decision and denied it reserved seats.
In April, the SIC filed a petition before the SC — moved by party chief Sahibzada Hamid Raza — seeking to set aside the PHC judgment.
The apex court on May 6 had suspended the March 14 PHC judgment as well as the March 1 ECP decision to deprive the SIC of seats reserved for women and minorities.
The SC had also ordered placing the present petitions before the three-judge committee that determines the constitution of the bench for the reconstitution of a larger bench when Attorney General for Pakistan Mansoor Usman Awan highlighted that under Section 4 of the Supreme Court (Practice and Procedure) Act 2023, the present case should be heard by a larger bench since the issue concerns the interpretation of constitutional provisions.
The ECP subsequently suspended victory notifications of as many as 77 members of the national and provincial assemblies elected on those seats.
The suspended lawmakers include 44 from PML-N, 15 from PPP, 13 from JUI-F, and one each from PML-Q, IPP, PTI-P, MQM-P, and ANP.
Resultantly, the ruling coalition lost a two-thirds majority in the lower house of parliament for now, with its numerical strength shrinking to 209 from 228. In the House of 336, the magic figure to attain a two-thirds majority comes to 224.
The PML-N’s strength in the House has reduced from 121 to 107 while PPP’s from 72 to 67.
Those suspended include 22 members of the National Assembly elected on reserved seats for women and minorities. They include 14 from PML-N, five from PPP, and three from JUI-F.
Headed by the CJP, a full court meeting had considered various aspects of the controversy at length since the case is of first impression and will have a far-reaching impact on the allotment of the reserved seats among political parties in the legislature in the future as well.
The real controversy before the court was how to deal with the reserved seats if they are neither doled out to other parties having a presence in Parliament and provincial assemblies nor allotted to the SIC that did not contest the Feb 8 general elections and thus failed to secure a single seat — a legal requirement for the allotment of reserved seats according to the ECP.
The SIC, however, argued that under the concept of a proportionate representation system, it was not a constitutional requirement for the allocation of reserved seats that a political party having general seats in the assemblies had contested the general elections.
The ECP has since, along with the PPP and federal government, filed a review appeal in the apex court against its reserved seats verdict.
