The eight majority members of the Supreme Court's full 13-member bench, which had decided the reserved seats case in favour of the Pakistan Tehreek-e-Insaf (PTI), on Monday issued a detailed verdict in which it termed election disputes as issues concerning all the people in the specific constituency under question rather than regular civil disputes between two parties and noted that the apex poll body had failed to fulfil its responsibility to hold free and fair elections.
The 70-page detailed verdict, authored by senior puisne judge Justice Mansoor Ali Shah and signed by the remaining judges who were in the majority, including Justice Muneeb Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Syed Hassan Ali Rizvi, Justice Shahid Waheed, and Justice Irfan Saadat Khan, and was issued in continuation of the short order issued on July 12 in the reserved seats case where the top court restored the PTI as a parliamentary party and awarded reserved seats to the party.
The court noted that when the Peshawar High Court issued the verdict, its scope and powers under Article 199 were limited; hence, it was unable to do "complete justice". But the top court had no such compulsions, hence they were doing complete justice.
Before explaining its decision, the top court prefaced its actions by noting that it is necessary to underscore the nature of election disputes and the responsibility of courts and other judicial and quasi-judicial bodies in adjudicating such disputes. It said that when hearing the appeals, certain facts and points of law were questioned by some members of the bench, the counsel for the respondents submitted that "those facts were not in the pleadings and that those points of law did not arise from the facts presented in the pleadings."
"They contended that in exercising its appellate jurisdiction under Article 185 of the Constitution, this Court cannot go beyond the pleadings," the court acknowledged; however, it clarified that such a contention was "misconceived".
"Elections are a crucial part of the democratic process, and the public has a major stake in ensuring that they are held free and fair, unmarred by corrupt or illegal practices," the court observed, adding that election cases are fundamentally different from ordinary civil cases and involve substantial public interest.
"These cases involve not just the rights of the contesting candidates or political parties but also the rights of the voters, constituencies and the public."
The court held that election cases aim to fill public offices with properly qualified and duly elected candidates and to maintain the purity of elections, ensuring that no one takes charge of a public office through flagrant breaches of election laws or corrupt practices.
"The process of free and fair elections requires vigilant judicial monitoring to check the influence of any capricious or partisan election or executive authority," it said, adding that the courts have a "critical responsibility" to address lawless behaviour in the electoral process, defending the rights of the constituency and the values and principles of democracy.
"Courts must rise above political biases and interests, focusing solely on legal and evidential matters to safeguard the electorate's interests," the court observed, adding that the court bears a profound duty to prioritise and protect the rights of the electorate, ensuring that their voice and representation in elected bodies are not compromised by procedural failings or errors in the electoral process and this duty underscores the court's unique and expansive constitutional mandate to oversee the electoral cycle comprehensively.
"Unfortunately, the above legal position regarding the nature of election disputes and the responsibility of courts was not brought to the notice of the bench by the learned counsel for the parties while making their arguments. However, 11 members of the bench, being themselves aware of the above legal position, proceeded to inquire into the facts and points of law that were not presented before the court below, that is, the Peshawar High Court."
The court noted that while the 11 judges disagreed to some extent on granting the eventual relief, their awareness of the true legal position as to the nature of election disputes and the responsibility of courts led them to a broader and more comprehensive judicial inquiry into all the relevant facts and law points concerning the election dispute involved.
With regard to the case and apparent conflicting stance from Sunni Ittehad Council's (SIC) lawyer who attempted to explain just how seemingly PTI members had joined their party post elections, the court noted, "we say that both SIC and PTI took the same stance on the peculiar circumstances that led the returned candidates to join SIC; in no way did they make any conflicting assertions. Both emphasised that it is the right of the people who had voted for the returned candidates that their mandate should be reflected in allocating the disputed reserved seats to SIC or to PTI."