Eight SC judges throw their weight behind PTI

ISLAMABAD: The Supreme Court on Friday ruled that Pakistan Tehreek-e-Insaf (PTI) was and is a political party that won general seats in the national and provincial assemblies in the February 8 elections thus entitled to reserved seats, declaring the Election Commission of Pakistan’s decision of allocating reserved seats to the ruling coalition as unconstitutional and unlawful.

A 13-member Full Court of the apex court announced judgement in the appeals filed by the Sunni Itehad Council (SIC) against the judgement of the Peshawar High Court (PHC), denying the party reserved seats for women and minorities in the National and provincial assemblies.

The court by a majority of 8 set aside the PHC judgement of March 25, 2024 and declared the ECP order of March 1, 2024, to be ultra vires the Constitution, without lawful authority and of no legal effect. Those judges who gave the majority judgement comprise Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Irfan Saadat Khan. Justice Aminuddin Khan and Justice Naeem Akhtar Afghan, however, dismissed the SIC appeal and upheld the PHC decision. Similarly, Justice Jamal Khan Mandokhail and Justice Yahya Afridi have appended their separate short orders. Chief Justice Qazi Faez Isa, Justice Mansoor and Justice Munib agreed with the short order of Justice Mandokhail.

The majority of judges declared that the lack or denial of an election symbol does not in any manner affect the constitutional and legal rights of a political party to participate in an election (whether general or bye) and to field candidates, and the ECP is under a constitutional duty to act and construe and apply all statutory provisions, accordingly.

The majority verdict further declared that for the purposes, and within the meaning, of paragraphs (d) and (e) of clause (6) of Article 51 (Article 51 Provisions) and paragraph (c) of clause (3) of Article 106 (Article 106 Provisions) of the Constitution, the PTI was and is a political party, which secured or won (the two terms being interchangeable) general seats in the national and provincial assemblies in the General Elections of 2024.

“For detailed reasons to be recorded later and subject to what is set out therein by way of amplification and/ or explanation or otherwise, these appeals are decided and the impugned judgement dated 25.03.2024 of the learned Full Bench of the High Court is set aside to the extent it is or may be inconsistent with this Order or the detailed reasons,” said the majority order.

The court declared the ECP order of March 1 to be ultra vires the Constitution, without lawful authority and of no legal effect. “The notifications (of various dates) whereby the persons respectively mentioned therein (being the persons identified in the Commission’s notification No F 5(1)/2024-Cord. dated 13.05.2024) have been declared to be returned candidates for reserved seats for women and minorities in the national and provincial assemblies are declared to be ultra vires the Constitution, without lawful authority and of no legal effect, and are quashed from 06.05.2024 onwards, being the date an interim order was made by the Court in the leave petitions out of which the instant appeals arise,” the court held.

The majority judgement noted that during the hearing of the appeals, on June 27 the ECP counsel placed before the court a list of 80 returned candidates for the National Assembly (now MNAs), setting out in tabular form particulars relating to their election. The counsel made a categorical statement that the ECP stood by the data so provided to the court. In particular, the list contained three columns marked as follows: (i) “Statement (on nomination form) given in declaration and oath by the person nominated (i.e. ‘I belong to’); (ii) Certificate of party affiliation under Section 66 of the Elections Act, 2017; and (iii) Statutory Declaration/ affidavit accompanying section 66 certificate.”

The court held that in the peculiar facts and circumstances of the Feb 8 general election, it is declared that out of the 80 returned candidates those being 39 in all and whose particulars in respect of whom the ECP has shown the PTI in any one of the aforesaid columns in the list, were and are the returned candidates whose seats were and have been secured by the PTI within the meaning, and for purposes of, para 5 above in relation to the Article 51 provisions. “In the peculiar facts and circumstances of the General Election of 2024, it is further ordered that any of the remaining 41 returned candidates out of the aforesaid 80 may, within 15 working days of this order file a statement duly signed and notarised stating that he or she contested the general election as a candidate of the political party specified therein,” said the majority judgement.

If any such statement(s) is/ are filed, the court directed that the ECP shall forthwith but in any case within 7 days thereafter give notice to the political party concerned to file, within 15 working days, a confirmation that the candidate contested the general election as its candidate. The court ruled that a political party may in any case, at any time after the filing of a statement of its motion, file its confirmation, adding that if such a statement is filed, and is confirmed by the political party concerned, then the seat secured by such candidate shall be forthwith deemed to be a seat secured by that political party for the purposes of para 5 above in relation to the Article 51 provisions.

The court directed the ECP to issue, and post on its website, a list of the returned candidates (now MNAs) and seats to which this para applies within 7 days after the last date on which a political party may file its confirmation and shall simultaneously file a compliance report in the apex court. “For the purposes of para 5 of this Order in relation to the Article 51 provisions, the number of general seats secured by PTI shall be the total of the seats declared in terms of para 7 and those, if any, to which para 8 applies,” the court held, adding that the PTI will be entitled to reserved seats for women and minorities in the National Assembly accordingly.

“PTI shall, within 15 working days of this Order file its lists of candidates for the said reserved seats and the provisions of the Elections Act 2017 (including in particulars 104) and the Elections Rules 2017 shall be applied to such lists in such manner as gives effect to this Order in full measure,” the judgement held.

The court further ruled that the ECP shall, out of the reserved seats for women and minorities in the National Assembly to which para 3 of this Order applies, notify as elected in terms of the Article 51 provisions, that the number of candidates from the lists filed (or, as the case may be, to be filed) by the PTI as is proportionate to the general seats secured by it in terms of paras 7 and 8 of this order.

The court held that the foregoing paras will apply mutatis mutandis for purposes of the Article 106 provisions in relation to the PTI (as set out in para 5) for the reserved seats for women and minorities in the Khyber Pakhtunkhwa, Punjab and Sindh provincial assemblies to which para 3 of the order applies.

“In case the Commission or PTI need any clarification or order so as to give effect to this para in full measure, it shall forthwith apply to the Court by making an appropriate application, which shall be put up before the Judges constituting the majority in chambers for such orders and directions as may be deemed appropriate,” the SC judgement ruled.