Arguing that the Supreme Court has made many legal provisions of the Elections Act redundant, the Election Commission of Pakistan (ECP) filed a review petition on Wednesday against the full bench's majority judgment in the reserved seats case, which granted relief to the Pakistan Tehreek-e-Insaf (PTI).
The ECP had been directed in a short order by eight judges of the 13-member full bench of the Supreme Court to register within 15 days (expiring on August 6) 39 independently elected lawmakers of the National Assembly as PTI members because they had submitted nomination papers on PTI tickets, and then collect affidavits from the remaining 41 independent members - who did not file nomination papers as PTI members - whether they wish to join the PTI or any other parliamentary political party even though they had all voluntarily joined the Sunni Ittehad Council (SIC). The ECP, however, did not publish a list of all candidates who had submitted affidavits or a new list of opposition members in the national assembly.
In its review petition on Wednesday, the ECP contended that 80 returned candidates who contested the February 8, 2024, general election as independents had submitted declarations to the effect that they had joined the Sunni Ittehad Council (SIC).
The independent-returned candidates made the decision to join SIC fully armed with these facts and were aware of the legal consequences of their decision, and that the court cannot presume otherwise, the top poll body argued in their petition.
"That even if subsequently a bid for reserved seats by the SIC failed, on the basis that it did not fulfil the necessary pre-requisites, those independent candidates who had joined SIC had to stand by the consequences of their own decision taken earlier, and the court could not redeem them from the same."
The ECP further contended that the top court has seemingly presumed that, of the 80 independent returned candidates, 41 of them did not remain unaffiliated by their own choice and that their declaration of unaffiliation was without deliberate action and intention.
"Instead, the court has granted them an opportunity to remedy the same by retrospectively declaring a party affiliation. This presumption finds no basis in the pleadings, especially when it is considered that the 39 other independent returned candidates did, in some manner or other, declare a party affiliation," the ECP argued.
"Even in the narrow circumstances where a court can make presumptions as to certain facts, it is an established legal principle that those presumptions are rebuttable presumptions," it continued.
"In the instant case, the error of presumption, respectfully submitted, is compounded because the ECP was never given the opportunity to rebut the presumptions, effectively condemning ECP unheard."
ECP said that the top court's judgment in this case amounts to judicial overreach, and there is no place for such intervention.
"Interestingly, one member of the SIC, Ms Kanwal Shauzeb, came forward and claimed the reserved seats for and on behalf of SIC, and none else, without any party list of candidates having been submitted by SIC in this regard," the poll body pointed out.
"It is apparent on the face of the record that the criteria by which the court has separated the independent-returned candidates into different categories, is fundamentally flawed."
The ECP contended that it has clearly not been taken into account that if questions of party affiliation / party candidacy are to be re-determined or re-assessed, such re-determination / re-assessment cannot be made by only taking into consideration the declarations made by the returned candidates and must also encompass declarations made by the unsuccessful candidates.
"The impugned judgment, by taking a candidate's own declaration, even without a corresponding party ticket, as material for the purposes of identifying who is the political parties' candidate for a particular constituency, has created an anomaly whereby one constituency may have multiple candidates of the same political party, which is against the letter and spirit of the law," the ECP said suggestively.
"Taking only the successful returned candidates into account when determining who was a candidate of PTI in the general elections 2024 gives an unfair advantage to the (non-petitioner / non-claimant) PTI."
The ECP further maintained that the judgment left certain questions, which were integral to the matter, unanswered.
"The impugned judgment does not take into account returned candidates who choose to remain independent. That even after the 15-day period provided to 41 independent returned candidates to be recognised as the returned candidates of a particular party and necessary declarations have passed, there may still be independent returned candidates, and when their strength is taken into consideration for the purposes of allocating reserved seats, some reserved seats remain unallocated," the ECP argued.
"The impugned judgment, despite setting aside the decision of the ECP, has not provided any direction as to how such reserved seats are to be allocated, leaving a fundamental question unanswered."
ECP further contended that even as it was filing the review petition, the PTI had failed to conduct intra-party elections, which had kicked off the entire issue where the party lost its party symbol for elections and subsequently its place in the polls. thus, the party lacks authorised leadership which can issue party tickets and certificates. "That the impugned judgment is not sustainable on this ground alone," it added.
"On a plain reading of Article 51 sub-clauses (d) & (e) and Article 106 of the Constitution, it becomes apparent that reserved seats could only have been given to the party which actually contested the general election and won a seat to amplify or bag the seats won by independents (who join such political party)."
The apex poll body argued that since the SIC did not participate in the general elections, it could not be given such seats. "How could those seats then be given to PTI, neither a party to the lis nor came forward as claimant of those seats?"
"The effect of Article 63(A)(2) of the Constitution has clearly been ignored. A member of a House shall be deemed to be a member of a parliamentary party if he, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such parliamentary party after such election by means of a declaration in writing," the ECP argued.
"Clearly, the 80 members gave a declaration in favour of SIC and not PTI," the ECP said, before tellingly adding, "Interestingly, they could have joined PTI, if at all, but none of them did."
"It is trite law of this land that no redundancy can be attributed to a provision of the statute under the garb of interpretation. So much so, by making a room for one party, sections 57, 58, 66, 104 and many others of the Elections Act have been made superfluous."
"Additionally, Articles 51(6)(d) & (e) and 106 besides Article 63(2), 63(A)(2) and 17of the Constitution have also been brushed aside and have virtually been rewritten."