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.
The court noted that while 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.
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."
Withdrawing PTI's symbol and consequences
The court noted that a political party, once enlisted under the Elections Act, it cannot be delisted; "the Election Commission of Pakistan's (ECP) power to cancel the enlistment of a political party under subsection (5) of Section 202 relates only to the political parties enlisted before the commencement of the Elections Act, i.e., under earlier law."
The court noted that the the Election Act lists the requirement for political parties to hold intra-party elections (Section 209) and regulations for its reporting to the ECP and consequences for failure to adhere to those regulations. However, the court noted that the relevant clause for punishing a party are violative of such regulation - contained in Section 215(5) - had the word "may" which indicated that it was the ECP's discretion to "making the declaration, which discretion, like all other discretionary powers vested in public functionaries, is to be exercised justly, fairly and reasonably, considering the peculiar facts and circumstances of each case."
But it added that the consequence of making such a declaration is clearly specified and is not left to the discretion of the ECP.
"As stipulated in Section 215(5), the consequence of making the declaration is that the Commission is not to allocate an election symbol to such political party in subsequent elections."
The court noted that the specified penalty of non-allocation of an election symbol curtails a political party’s fundamental right to function and operate as a political party—a right implicit in the right to form a political party guaranteed by Article 17(2) of the Constitution.
"Additionally, no other constitutional or statutory right of the political party can be denied on the basis of the non-allocation of an election symbol under this provision," the court held.
"The sole consequence of declaring a political party ineligible to obtain an election symbol under Section 215(5) of the Elections Act for failing to comply with the provisions of Section 209 regarding intra-party elections is the non-allocation of an election symbol to that party in subsequent elections—nothing more, nothing less," it added, noting that it "does not affect the political party’s other constitutional and statutory rights."
The court, however, went on to say that "had this court clarified this legal position in its order dated January 13, 2024, or had the Commission clarified it in its order dated December 22, 2023, or order dated January 13, 2024, the entire confusion regarding the status of PTI candidates or PTI’s right to reserved seats would not have occurred."
The detailed verdict also expressed doubts over the ECP's power to reject the certificate of intra-party elections submitted by a political party under Section 209.
The court further pointed out that the explanation of Rule 94 created by the ECP under the Elections Act 2017, defines political parties as those parties which have been allocated a symbol by the commission but this explanation was contrary to the provisions contained in Articles 51(6)(d) and (e) and 106(3)(c) of the Constitution and thus declared ultra vires the Elections Act and the Constitution, thus void and invalid.
On the question of not allocating the party symbol and its impact on a candidate's nomination by the party, the court noted that while the Election Act allocates symbols to parties and to independents and does not note any instance where a candidate can be allocated a symbol but may be nominated by a party but not an independent, but it should not impact how the candidate is treated i.e. as a nominated candidate of the party and not an independent.
"The allocation of a symbol under subsection (3) does not alter the candidate’s status as a nominee of the political party, which is determined under Section 66 on the basis of his declaration and the party certificate (party ticket) issued in his favour," the court said of the ECP's February 2 order which declared PTI candidate Salman Akram Raja's application as that of an independent candidate and not of a party nominee.
The court further noted that the ECP’s reliance on the observations of the top court in its January 13 order was misconceived and misplaced, as the observation pertained to Section 215(5).
"Notwithstanding that a political party has been declared ineligible to obtain an election symbol, its nominated candidates cannot be mentioned as independent candidates in the list of contesting candidates (Form 33), despite allotment of different election symbols to them under Section 67(3) of the Elections Act, nor can they be notified as independent returned candidates in the Section-98 Notification."
Thus, the court held that PTI’s nominated candidates were wrongly shown as independent candidates in the list of contesting candidates (Form 33) by the Returning Officers and were also wrongly notified as independent returned candidates in the Section-98 notification by the ECP.
On the issue of whether Barrister Gohar Ali Khan was a duly elected chairman of PTI to issue party tickets given his election had been voided by the ECP, the court noted that while the commission voided the intra-party election of Gohar as PTI chairman on December 22, this decision was suspended from December 26 until January 13, when the Peshawar High Court first suspended the order and remained suspended until the Supreme Court restored it on January 13.
"During this period, Gohar Ali Khan was holding the office of Chairman of PTI and had, therefore, validly issued party tickets to PTI candidates, including Mr. Raja," it said,
"In the case of rejection of the intra-party elections [by ECP], the previous office-bearers are reinstated, for no political party, as held above, can exist without either de facto or de jure office-bearers to perform its functions and manage its affairs," the court further explained. Hence, the the clarification issued by the majority judges on September 14, 2024, on an application of the ECP shall also be read as part of this judgment.
With Chief Justice Qazi Faez Isa seeking an explanation from the Supreme Court deputy registrar over the uploading of the clarification on the Supreme Court website without consulting him and whether such an order was passed by hearing the relevant parties and if the matter was fixed for a hearing or not, the order explained: "In terms of para 10 thereof, there was no legal requirement, nor did we find it necessary, to hear the parties before clarifying our own order on the point regarding which the Commission was unclear. Thus, we provided the above clarification without issuing notice to, or hearing, the parties on the Commission's application. "
Allocating seats to a parliamentary party
On the question of what constitutes or creates a parliamentary party, the court noted that the "action of becoming a member of a House as a candidate or nominee of a political party produces two results: (i) it makes a political party, whose candidate or nominee is elected as a member of a House, a parliamentary party, and (ii) it makes that member of a House, a member of such parliamentary party. A member of a House elected as an independent candidate can become a member of a parliamentary party by joining only such a political party that constitutes a parliamentary party, not a political party that does not constitute a parliamentary party."
The court concluded that since Article 51(6)(d) of the Constitution refers to political parties that have contested for and won one or more general seats in the National Assembly from the province concerned, not to all enlisted political parties. But since the SIC neither contested for nor won one or more general seats in the national assembly from any of the provinces or other territories, it is not such a party that any independent candidate can join.
Tthe PTI, on the other hand, contested and won some general seats in the National Assembly and is a political party entitled to the allocation of the disputed reserved seats.
Keeping in view the provisions for representation through reserved seats, the court held: The ECP is to calculate the share of proportional representation of PTI and other political parties in the reserved seats accordingly.
Why PTI was provided relief
The court, while detailing reasons for the relief granted, noted that the unlawful acts and omissions of the Returning Officers and the ECP, caused confusion and prejudice to PTI, its candidates and the electorate who voted for the PTI.
"PTI, its candidates and the electorate should not be made to suffer or be prejudiced by the unlawful acts or omissions of public functionaries, namely the Returning Officers and the Commission. Given that they have been deprived of their constitutional right to proportional representation in the reserved seats due to these unlawful acts and omissions, they are entitled, by virtue of an obligation of justice (ex debito justitiae), to be restored to that right and placed, insofar as possible, in the same position they would have been if such unlawful acts and omissions had not occurred."
Later in the order, the court explained: "The procedural formality of first accepting PTI’s application and then granting it the relief does not carry much weight where the court’s concern is the protection of the right of vote of the people (the electorate) guaranteed under Articles 17(2) and 19 of the Constitution, more than the right of any political party—whether it be SIC or PTI or any other party," the court held.
"While doing complete justice in the exercise of its general power under Article 187(1) of the Constitution, this court is not handicapped by any technicality or rule of practice or procedure, nor is the exercise of this power by the Court dependent on an application by a party."
Disagreement with judges
The detailed order also offered some words on the disagreement with the five judges who saw the matter different to the majority eight judges.
"Judges need not always see eye to eye and may ultimately disagree, but the possibility of disagreement does not absolve them from engaging in a free and frank discussion before rendering their final opinion," they observed.
"Egos may be bruised, tempers tempted, yet all must pursue the process with respect and civility," the verdict held.
The verdict noted that the eight judges were fulfilling their professional responsibility to deliver a well-considered decision on the matter involved in the present case, by laying out their position and, with respect, the defects they saw in the positions adopted by their colleagues’ positions.
"Unfortunately, neither could we convince them of our view, nor could we bring ourselves to agree with theirs."
They observed that all 13 judges agreed that due to unlawful acts and omissions of the Returning Officers and the Commission, PTI, its candidates and the electorate have suffered the loss of some of their constitutional and statutory rights, particularly their right to proportional representation in the reserved seats. However, they differed on how they could, by virtue of an obligation of justice (ex debito justitiae), restore them to that right and place them, insofar as possible, in the same position they would have been if such unlawful acts and omissions had not occurred.
The court noted that Chief Justice Qazi Faez Isa and Justice Jamal Khan Mandokhail had formed the opinion that “the candidates who had submitted their nomination papers declaring that they belonged to PTI and had not filed a document showing affiliation with another political party before the last date of withdrawal of the nomination papers, should have been treated,” as PTI returned candidates.
However, Justice Yahya Afridi was of the view that “[a] candidate for a seat in the National Assembly or the Provincial Assembly who in his/her nomination paper has declared on oath to belong to PTI and duly submitted a certificate of the same political party confirming that he/she is the nominated candidate of PTI for the respective constituency, shall remain so,…unless he/she submitted a written declaration to the ECP or Returning Officer to be treated as the candidate of another political party or as an independent candidate”.
"Our conscience and understanding of the realities of the case do not allow us to assume and accept this position. We are completely at a loss to understand the logic, other than the constraint of the circumstances, as to why a candidate of a national-level political party (PTI), which had once formed the federal government and two provincial governments, would supersede his candidature of that party (PTI) with a party (PTI-Nazriati) whose name had not even been heard by most of the electorate, or why he would leave the candidature of that party (PTI) and become an independent candidate, by his own free will," they said, adding, that they cannot assume by any stretch of the imagination that hundreds of candidates for the NA and the provincial assemblies would act in such a manner by their own free will.
"We must say that we tried hard to understand how, in a parliamentary democracy based on a political parties system...such a large number of candidates to the seats in the National Assembly and the provincial assemblies could inspire and win the confidence of the electorate as independents," the judges observed, adding that their colleagues treated 41 returned candidates as independents since they did not mention they belonged to the PTI on their nomination papers.
"The assertion of SIC and PTI that they were also PTI candidates and the electorate voted for them for their being PTI candidates, though, appears satisfactory but is not supported by the record presently before us," the order said, arguing that those returned candidates who have not appeared before the court to rebut the presumption accepted by the other judges, because the majority of eight judges believe that they are speaking through the SIC.
"What SIC says on facts is the version of those returned candidates," the court determined, adding, "Both SIC and PTI have narrated the same facts and circumstances that led to the mentioning of their status as independent candidates in the nomination papers. Both have claimed that they were also PTI candidates and that the electorate voted for them for being PTI candidates."
It further pointed to Section 66 of the Election Act and noted that nomination is a matter between the candidate and the party to which a candidate claims affiliation. "No consent or authorisation from any third person or authority is required to establish their relationship and the candidate’s status."
To give effect to this, the detailed order referred to how in the short order they had directed the candidates to submit written declarations and for the party to issue tickets. This would also help confirm the status of the 41 independent candidates whether they were PTI candidates or independent candidates.
"No subsequent act altering what, upon submission of the statements and confirmations, will become a past and closed transaction. Neither the returned candidates nor PTI can later resile from this position."
Since the court had faced verdant criticism and review petitions from political parties that candidates cannot be allowed to switch parties after the three days proceeding gazette notification of returned candidates, the eight judges asserted that this move was only meant to determine whether the 41 returned candidates were indeed PTI candidates. "In no way does it amount to accepting them as independent returned candidates and granting them another opportunity to join a political party."
"Once their status is determined upon submission of the requisite statements and confirmations, they shall be deemed returned candidates of PTI from the date of the publication of their names as returned candidates in the official gazette."
The detailed verdict noted that since the ECP enjoys general power is similar to the power of the Supreme Court, it could have "issue[d] such directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it." By failing to exercise this power to undo its previous unlawful act and ommissions and restore the PTI to its status of a parliamentary party while allocating its reserved seats, the court declared all such acts of the ECP ultra vires the Constitution, without lawful authority and to no legal effect.
However, the order noted with "heavy heart" the response of two judges on the bench, Justice Aminuddin Khan and Justice Naeem Akhtar Afghan who had issued a dissenting note.
The eight judges noted certain observations made by the two dissenting judges "do not behoove judges of the Supreme Court of Pakistan".
"They may strongly express divergent opinions and make comments on each other’s views, highlighting reasons why they believe other Members have erred. However, the manner in which they have expressed their disagreement falls short of the courtesy and restraint required of Judges of the Superior Courts," the judgement read.
The court added that these judges appear to have gone beyond the parametres of propriety by warning the 39 plus 41 (80) returned candidates and urging the ECP not to comply with the majority order, which is the decision of a 13-member Full Court Bench of the Supreme Court.
"Such observations undermine the integrity of the highest institution of justice in the country and seem to constitute an attempt to obstruct the process of the court and the administration of justice."
Role of ECP
The judgement stated that the ECP as a constitutional “electoral management body”, is not merely an administrative entity but a fundamental “guarantor institution” of democratic processes, with a constitutional status akin to a "fourth branch of government".
"Unfortunately, the circumstances of the present case indicate that the Commission has failed to fulfill this role in the General Elections of 2024."
Moreover, the court expressed its surprise over how the ECP was acting as a primary contesting party against a political party even though its function is to simply 'organise and conduct the election' and is primarily executive, not judicial or quasi-judicial.
But, when acting in certain circumstances as a quasi-judicial body, when it decided claims and counterclaims on reserved seats, it could no longer be treated as an aggrieved person if its decision is set aside and cannot challenge or contest an appeal filed against its quasi-judicial decision by one of the rival parties.
With regards to the order of the Peshawar High Court upholding the ECP's decision, the eight judges noted that the high court's powers under Article 199 are not as wide as that of the Supreme Court under 187.
The court also quashed notifications for returned candidates on disputed reserved seats from May 6, 2024, when the court had suspended the ECP's order.