The Supreme Court has ruled that the civil court, where the criminal case regarding Member of National Assembly (MNA) Adil Bazai’s alleged fake affidavit of joining the Pakistan Muslim League-Nawaz (PML-N) is pending, should decide the matter at the earliest.
“Given the seriousness of the appellant’s allegations regarding the fabrication and use of a false consent affidavit against Shehbaz Sharif, the then-President of PML-N and now the Prime Minister of Pakistan, we expect that the Civil Court, where the civil suit is sub judice, and the Magistrate, before whom the criminal complaint is pending adjudication, shall decide the matter as early as possible,” the top court said in its detailed judgment in the MNA Adil Bazai case.
A three-judge bench headed by Justice Mansoor Ali Shah, and comprising Justice Ayesha Malik and Justice Aqeel Abbasi, had reinstated Adil Bazai as an independent MNA from NA-262, Quetta-I, in December.
Due to the top court’s judgment in the "bat symbol" case, Bazai contested the election as an independent candidate. However, on 18 February 2024, a letter was submitted to the Election Commission of Pakistan (ECP) by PML-N’s then President Shehbaz Sharif, informing the Commission that Bazai had joined PML-N through a consent affidavit dated 16 February 2024.
On 20 February 2024, a similar letter was submitted to the ECP by the Chairman of the Sunni Ittehad Council (SIC), Sahibzada Muhammad Hamid Raza, notifying that the appellant had joined SIC through a consent affidavit dated 20 February 2024.
The ECP accepted the letter received from the President of PML-N but rejected the letter from the Chairman of SIC.
PML-N’s party head had sought the de-seating of the MNA for violating the party’s directions in the voting process of the 26th Amendment.
Bazai claimed that the affidavit submitted by PML-N’s then President Shehbaz Sharif was fake and fabricated, and he challenged the document in the civil court.
Justice Mansoor Ali Shah authored a 12-page judgment, while Justice Ayesha Malik, agreeing with the judgment, wrote a 5-page additional note.
Justice Ayesha Malik, in her additional note, observed that the facts of the case compelled the top court to once again reiterate that the constitutional duty of the ECP cannot be considered an overarching constitutional power vis-à-vis other constitutional provisions and institutions.
“The ECP is, as per the constitutional mandate, an independent body, duty-bound to conduct free and fair elections and ensure that those elected by the people remain in government,” said Justice Malik.
She further noted that the independence of the ECP is the fundamental safeguard in a democratic system, which maintains the integrity of elections, ensures that the will of the people is translated into their consent to be governed by elected representatives.
“This is what gives legitimacy to the government because it is based on the choice of the people. This is what builds public confidence, protects the rule of law, and protects people from political manipulation,” said Justice Malik.
“The Constitution expressly provides that the authority of government rests solely on the will of the people,” she observed, adding that this will manifests itself through the people's exercise of their right to vote and participate in the electoral and political process.
“The facts of this case show that the ECP failed to perform its constitutional duty to actualize the will of the people. The appellant (Bazai) in these cases is an elected member of the National Assembly against whom a reference for defection was filed under Article 63A of the Constitution.”
The additional note further stated that Bazai’s entire case before the ECP was premised on the fact that he was never a candidate for or a member of the PML-N.
“When the issue of defection came up, the ECP did not consider any of the material evidence relied upon by the appellant, nor did it consider his stance with reference to the affidavit of 16.02.2024.”
“Given that there were two affidavits before the ECP, it had to thoroughly examine the documents to determine whether it could proceed under Article 63A of the Constitution.”
“Instead, the ECP accepted the version of the party head of PML-N without any scrutiny and proceeded on that basis. The ECP did not specifically consider the denial of the affidavit of 16.02.2024 and the denial of the letter of the party head dated 17.02.2024, nor did they provide the appellant with these documents until he sought a direction from the High Court of Balochistan on 31.10.2024 to provide him with the required documentation. Instead, the ECP opted to act on the letter of the party head of PML-N dated 17.02.2024 without following due process, which not only violated the appellant’s right to due process and fair hearing but also violated the right to vote of the people who voted for the appellant.”
“In doing so, the ECP also disregarded the stay order dated 02.11.2024 issued by the Senior Civil Judge-III, Quetta, and ignored the proceedings in the criminal complaint. These actions of the ECP demonstrate a leaning by the ECP in favour of a political party and the government, which totally negates its constitutional duty and the Constitution’s standards to act honestly, justly, and fairly.”
“Consequently, when political competitors are not afforded equal opportunities during the election period, it results in a violation of the citizens' fundamental rights. In terms of the judgment in this matter, authored by Justice Syed Mansoor Ali Shah, the ECP should have confirmed that the affidavit of 16.02.2024 was a genuine document and should have confirmed the genuineness of the declaration made by the party head of PML-N.”
Justice Malik further observed that the independence of the ECP, therefore, is fundamental to the election process, without which the very foundation of democracy is undermined.
“This Court has also recognized and declared that the ECP should not become subservient to political influences or political engineering, but remain an impartial custodian of democracy, as any leaning of the ECP in favour of the government would compromise the legitimacy of the political system.”
“The supremacy of the vote underscores the idea that power and legitimacy in a democratic system derive their consent from the governed, which is why an independent constitutional body is required to ensure that the will of the people, by way of election, is actualized.”
“It is unfortunate that despite clear pronouncements by this Court, the ECP conducts itself in a manner that is not in line with its constitutional duty, but rather aligned with the notion that they have the constitutional power to disregard other constitutional institutions and the basic right of the vote,” concluded Justice Ayesha Malik.