Major political party ousted from polls on flawed interpretation of SC verdict: Justice Minallah

ISLAMABAD: Supreme Court Judge Athar Minallah has said that exclusion of a major political party from the general elections on the basis of flawed interpretation of an apex court judgement definitely has the consequence of disenfranchisement of voters and thus deprivation of the reserved seats. 

In a separate note, released on Saturday at the Supreme Court website, Justice Minallah directed the Election Commission of Pakistan (ECP) to submit its concise statement, particularly to satisfy the 13-member Full Court hearing the appeal of Sunni Ittehad Council (SIC) regarding reserved seats.

“It is also for the Commission to satisfy this Court that a level playing field was provided and ensured before, during and after the general elections to all the political parties, including PTI,” Justice Minallah said. The judge opined that the petitions pending before the apex court raising questions regarding the integrity of the election process be fixed and heard with the petitions.

Justice Minallah said that the arguments advanced on June 25 by the counsel on behalf of the ECP have 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.

The judge said that the questions are rooted in the legitimacy of the electoral process and the counsel has unequivocally argued that one of the major enlisted political parties was purportedly disqualified from the competitive electoral process on the basis of ECP’s interpretation of the SC judgement. “Prima facie, the interpretation was flawed and the judgement could not have been construed as having the effect of disqualifying a major political party from the general elections.”

Justice Minallah noted that the counsel had argued that it was on this basis that the ECP had declared the candidates nominated by Pakistan Tehreek-e-Insaf (PTI) as independents.

This undisputed fact is evident from the orders passed by the ECP, which have been placed on record, Justice Minallah said, adding that the ECP counsel attempted to shift the burden of declaring the candidates of PTI as independents on 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,” the judge noted.

He said: “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.

“The pivotal factor in determining the electoral process to be genuine and credible is solely the public trust in the electoral institution entrusted with the constitutional obligation to conduct the elections i.e. the ECP,” the judge noted. Justice Minallah observed that the legitimacy of governance, future policies, legislation and public trust in the representative institutions exclusively depends on the integrity of the electoral process and electoral institutions.

“The buck stops with the ECP and thus the onus is on the Commission 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,” he maintained.

The judge said that the ECP failure to discharge this onus would definitely raise grave questions regarding the fulfilment of the constitutional duty to conduct elections in accordance with the mandate of the Constitution.

“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,” he noted.

“This Court is the custodian of the rights of the people and the right to vote is one of the most important fundamental rights; therefore, all other rights become illusory and the Constitution is gravely violated when voters are disenfranchised because the ECP fails in its duty to conduct the elections in accordance with the mandate of the Constitution,” he held. The judge noted that Constitution has vested the exclusive extraordinary jurisdiction under Article 184(3) in addition to doing complete justice in the exercise of the duty conferred under Article 187 of the Constitution.

“This Court cannot be a slave to technicalities in a matter of such public importance that affects every citizen and the future governance of the country,” Justice Minallah noted, adding that there are petitions pending before this Court raising questions regarding the integrity of the electoral process during the general elections and alleged violations of fundamental rights of 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,” the judge held.

Justice Minallah further held that the Supreme Court cannot and must not be seen as ignoring the elephant in the room and it cannot be perceived as being complicit in the alleged failures of the ECP to conduct genuine and credible elections as mandated under the Constitution.

“It is the onerous duty of this Court to ensure that no voter is disenfranchised and the questions regarding integrity of the electoral process are not ignored,” the judge held, adding that as a member of the Bench he had, therefore, directed the ECP, through the counsel who had appeared before the apex court, 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 the Supreme 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 made it clear that the question of the reserved seats before the court cannot be decided in isolation nor on the basis of technicalities and pleadings of the parties. The judge maintained that the issue involves the most fundamental democratic and constitutional right of the real stakeholders -- the people of Pakistan, adding that they are not before us 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 held.

The Supreme Court judge directed the ECP to submit its concise statement in the light of the above observations, particularly satisfying the court that the PTI, as a political party, was excluded from the electoral process legitimately and thus it cannot claim any reserved seat.