Justice Athar Minallah has observed that the country's apex court cannot be a slave to technicalities in a matter of public importance that affects every citizen and the future governance of the country and raised questions about the provision of level-playing field to all political parties during the February 2024 polls.
These observations and questions on providing a level-playing field to all political parties during the general elections on February 8, 2024, were raised by Justice Minallah as he directed the Election Commission Pakistan (ECP) to place on record the nature of complaints received prior to, during and after the general elections. His directions came in a note by virtue of his membership of a full-court bench hearing a plea by the Sunni Ittehad Council (SIC) demanding the allocation of reserved seats per their post-election representation in the National Assembly and respective provincial assemblies.
"As a member of this bench I had, therefore, directed the commission, through the counsel who had appeared before us, to place on record the nature of complaints received prior to, during and after the general elections held on February 8, 2024, and to satisfy this court that each political player was dealt with in accordance with the command of the Constitution by providing a level playing field to all of them," Justice Minallah in his four-page additional note. The note greatly expands the scope of the case filed by the SIC before the top court, wherein the Peshawar High Court's judgement against a determination by the Election Commission of Pakistan was challenged.
Justice Minallah added that the question of reserved seats cannot be decided in isolation or based on the technicalities and pleadings of the parties.
"The larger issue involves the most fundamental democratic and constitutional right of the real stakeholders; the people of Pakistan," observed Justice Minallah, adding that the real stakeholders are not before the court and, as the highest court vested with jurisdictions under Articles 184(3) and 187 of the Constitution, the approach ought to be inquisitorial.
"It is reiterated that the buck stops with the commission to satisfy this court that each political party had a level playing field in the electoral process and that no stone was left unturned to discharge the onerous constitutional duties under the Constitution."
Justice Minallah said that the arguments presented by ECP's counsel had raised profound questions of public importance, having far-reaching consequences in the context of fundamental rights, particularly the representative character implicit and embedded in the scheme of the Constitution.
"Prima facie, the interpretation (of the bat symbol judgment) was flawed, and the judgment could not have been construed as having the effect of disqualifying a major political party from the general elections," Justice Minallah wrote in his note, repeating a remark he had made during the last hearing of the case on Thursday.
The exclusion of a major political party from the general elections by the commission, on the basis of its flawed interpretation of the judgment of this court, definitely has the consequence of the disenfranchisement of voters
He added that ECP's counsel attempted to shift the burden of declaring the PTI candidates as independents to the Returning Officers.
"The record placed before us showed, prima facie, that the circumstances were unusual and extraordinary because the candidates of the purportedly disqualified enlisted political party were desperately endeavouring to maintain their status, as far as the voters were concerned, as a political entity."
Justice Minallah further observed that the arguments of the ECP's counsel had raised grave questions regarding the integrity of the electoral process and the role of a constitutional body vested with the onerous duty of conducting credible and genuine electoral contests.
"The exclusion of a major political party from the general elections by the commission, on the basis of its flawed interpretation of the judgment of this court, definitely has the consequence of the disenfranchisement of voters and thus deprivation of the reserved seats," said Justice Minallah.
"The fundamental mechanism for giving effect to the political representation implicitly entrenched in the scheme of the Constitution is solely based on ensuring a genuine and credible electoral process."
According to Justice Minallah, the pivotal factor in determining whether the electoral process was genuine and credible was solely the public trust in the electoral institution entrusted with the constitutional obligation to conduct the elections, i.e. the ECP.
"The legitimacy of governance, future policies, legislation and public trust in the representative institutions exclusively depends on the integrity of the electoral process and the electoral institutions," he wrote.
"The onus is on the ECP to satisfy this court that a major political party was justifiably excluded from the political and electoral process and that conditions were not created for depriving it of the legitimate right to claim its share of reserved seats."
Justice Minallah further added that the failure of the ECP to discharge this onus would definitely raise grave questions regarding the fulfilment of its constitutional duty to conduct elections in accordance with the Constitution's mandate.
"The matter before us has a direct nexus with the purported disqualification of one of the major political parties from the electoral process on the basis of a flawed interpretation of the judgment of this court."
"This court is the custodian of the rights of the people, and the right to vote is one of the most important fundamental rights," he observed, adding that all other rights become illusory and the Constitution is gravely violated when voters are disenfranchised because the commission fails in its duty to conduct the elections in accordance with the mandate of the Constitution.
He wrote that the Constitution has vested the exclusive, extraordinary jurisdiction under Article 184(3) in addition to doing complete justice in exercising the duty conferred under Article 187 of the Constitution.
Justice Minallah recalled that petitions were pending before the top court which raised questions regarding the integrity of the electoral process during the general elections and the alleged violations of the the fundamental rights of the voters and political workers.
"This court cannot turn a blind eye by ignoring the grave allegations regarding the integrity of the electoral process as doing so would have profound consequences regarding the matter in hand," he wrote.
"This court cannot and must not be seen as ignoring the elephant in the room."
"It cannot be perceived as being complicit in the alleged failures of the commission to conduct genuine and credible elections as mandated under the Constitution."
Justice Minallah has observed that it is the onerous duty of this court to ensure that no voter is disenfranchised and that questions regarding the integrity of the electoral process are not ignored.
"The commission is, therefore, directed to submit its concise statement in the light of the above observations, particularly satisfying this court that the PTI, as a political party, was excluded from the electoral process legitimately and thus it cannot claim any reserved seat."
He further observed that the commission must satisfy the court that a level playing field was provided and ensured before, during, and after the general elections for all political parties, including the PTI.
Justice Minallah also expressed the opinion that the petitions pending before the top court raise questions on the integrity of the electoral process, and they should be fixed and heard with the petitions in hand.