Constitutional amendment: Govt undeterred as SC order comes as a bolt from the blue

ISLAMABAD: The government on Saturday appeared to be determined to table the constitutional amendment in parliament even after the Supreme Court directed the Election Commission of Pakistan (ECP) to implement in letter and spirit its judgment, delivered on July 12 on reserved seats, with the warning that refusal by the electoral body to perform legally binding obligation might result in consequences.

The eight-member majority judges in chambers issued an order on the ECP plea seeking guidance on the point that in the absence of a valid organisational structure of Pakistan Tehreek-e-Insaf (PTI), who will confirm the political affiliation of the returned candidates (MNAs and MPAs) on behalf of the party. These MNAs and MPAs had filed their statements of affiliation with the PTI in the light of SC order of July 12.

The eight judges include 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. “The continued failure of, and refusal by, the commission to perform this legally binding obligation, may have consequences,” said a four-page order.

The judges declared that putting together the record placed before them, and considering the same in the light of the short order, leaves in little doubt that the clarification sought by the commission in terms of the CMA 7540/2024 is nothing more than a contrived device and adoption of dilatory tactics, adopted to delay, defeat and obstruct implementation of the SC decision. “This cannot be countenanced and even on the application of elementary principles of law, the application filed by the commission is misconceived,” says the order.

The eight judges declared that the attempt by the commission to confuse and cloud what is otherwise absolutely clear as a matter of the constitution and the law must, therefore, be strongly deprecated. They held that the list required to be issued by the commission in terms of paragraph 8 (read with paragraph 10) of the short order is nothing more than a ministerial act, for the information and convenience of all concerned, and has no substantive effect.

“Nonetheless, the continued failure of, and refusal by, the commission to perform this legally binding obligation may, as noted, have consequences,” says the order and directed that this obligation must be discharged forthwith.

The eight judges held that as per the position so determined, the said returned candidates were, and are, the returned candidates of PTI, and thus members of the parliamentary party of PTI in the National Assembly and provincial assemblies concerned, for all constitutional and legal purposes.

On July 12, a 13-member full court of the apex court had ruled that the PTI was, and is, a political party, which secured or won general seats in the National and provincial assemblies in the General Election 2024, thus entitled for reserved seats, declaring unconstitutional and unlawful the ECP’s decision of allocating reserved seats to the ruling coalition.

The eight judges, in their short order on Saturday, held that in reply to the ECP plea, the PTI had filed a CMA, and annexed a number of documents, including correspondence between the PTI and the commission.

“We have considered the material that has been placed before us and, by way of brief recapitulation, in paragraphs 4 and 5 of the short order, it has been categorically 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 by) and to field candidates, and that for the purposes, and within the meaning, of paragraphs (d) and (e) of clause (6) of Article 51 and paragraph (c) of clause (3) of Article 106 of the Constitution of the Islamic Republic of Pakistan, 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 as provided in that Order,” said the judgment.

They held that these paragraphs, and the preceding paragraph 3 of the short order, sound on the constitutional plan, being the proper interpretation and understanding of the relevant constitutional provisions. “The other paragraphs of the Short Order, including in particular paragraphs 8 and 10, are consequential upon what has been held and declared in the paragraphs just noted, and flow and emanate from, and give effect to, constitutional conclusions,” added the order.

The eight judges declared that all of these points would be explicated in the detailed reasons for the decision of the majority (i.e., the short order), which is the binding judgment of the court. “Turning now to the specific clarification purportedly sought, the PTI, in its reply, annexed a number of notices, issued by the commission to the PTI, through Barrister Gohar Ali Khan, in which it has itself identified the latter as the chairman of PTI,” the order noted.

Furthermore, the eight judges held that the “certifications required to be issued by a political party (here the PTI) and filed with the commission in terms of paragraphs 8 and 10 of the short order have, as per the record placed before us in relation to the returned candidates (now respectively MNAs and MPAs) in the National and the Sindh, Punjab and Khyber Pakhtunkhwa Provincial Assemblies, been issued under the signatures of Barrister Gohar Ali Khan and Omar Ayub Khan, who are identified therein as being, respectively, the Chairman and Secretary General of the PTI.

“These certifications are dated 18.07.2024, 24.07.2024 and 25.07.2024 and the list, in each case, the particulars of the relevant returned candidate (now MNA or MPA as the case may be) and in particular the dates on which the declaration required of the candidate (again, in terms of paragraphs 8 and 10 of the Short Order) was filed with the commission,” says the order, adding that these dates obviously all precede the respective dates of certification.

The eight judges further declared that having itself recognised Barrister Gohar Ali Khan as the PTI chairman, the commission could not now turn around and purport to seek guidance from the court with regard to how the certifications are to be dealt with. They held that the commission could not approbate and reprobate, taking whatever (shifting) stance as it desires and as may seem to suit its immediate purposes for the moment.

Furthermore, the eight judges held that the commission, even if one were to consider the application in the most sympathetic light, has apparently forgotten the well-known de facto doctrine or rule, in terms of which the acts of a person, who holds an office, are protected even if there may be (and no such conclusion is reached here in relation to the PTI) any issue with the position de jure. “It sufficed and the commission was duty bound in terms of the Constitution to keep in mind that the admitted position (as stated before the court during the hearing of the appeals) is that the PTI was, and is, an enlisted political party,” says the order.

The eight judges mentioned that the position was not only accepted and relied upon by them (eight judges) but also by other three judges in minority (Chief Justice Qazi Faez Isa, Justice Yahya Afridi and Justice Jamal Khan Mandokhail).

“Their lordship appear to have also accepted the validity of the party certificates (party tickets) issued by Barrister Gohar Ali Khan and thus his capacity to act for the PTI as its Chairman,” says the order, adding that having itself issued notices to the PTI through Barrister Gohar Ali Khan as its chairman, the commission gave recognition to both the party and the office-holder and that sufficed absolutely for purposes of the short order.

The eight judges held that it would be completely illogical to assume that a political party, a juristic person, is fully functional yet there are no natural persons who are either de facto or de jure performing its functions or running its affairs.

“Saying that a political party is an enlisted political party, fully functional for the purposes of its formation, yet there is no one that can perform its functions and run its affairs, amounts to blowing hot and cold in the same breath or, as noted, approbating and reprobating one and the same fact,” said the order.

The eight judges noted that there could have been no conceivable doubt that the certifications referred to above were correct and valid in terms of the short order and the continued denial and refusal of the commission to accept the same, as and when filed, is constitutionally and legally incorrect and may expose the commission to such further or other action as may be warranted in terms of the Constitution and the law.

“But there is another, and more fundamental, aspect that must also be alluded to. It was categorically declared in paragraph 8 of the Short Order that on filing the requisite statement and its confirmation by the political party concerned, the seat secured by such candidate shall be forthwith deemed to be a seat secured by that political party,” said the order.

“Therefore, upon submission of the declarations and certifications referred to above, the position of the returned candidates (now respectively MNAs and MPAs) immediately and ipso facto stood determined and fixed as a matter of law as on those dates and no subsequent act can alter what became, on the respective dates, past and closed transactions,” the judges held.

The eight judges held that as per the position so determined, the said returned candidates were and are the returned candidates of the PTI and thus members of the parliamentary party of PTI in the National Assembly and Provincial Assemblies concerned, for all constitutional and legal purposes. “With the above clarifications, the present application is disposed of and office shall dispatch a copy of this order to the respective parties,” the eight judges concluded.

Meanwhile, Barrister Aqeel Malik, Adviser to the Ministry of Law and Justice, has said the status of PTI members is in limbo as they are still independent. He said the clarification of Supreme Court has created more confusion and no institution can do the work of another institution.

“All matters related to elections lie with the Election Commission of Pakistan and the Supreme Court can interpret but cannot hand out party certificates to anyone,” he said in a private TV channel programme on Saturday.

Barrister Aqeel Malik said that after the brief order of eight judges of Supreme Court, the clarification order had added to the ambiguity and hoped things would come out in the detailed judgment of the court. He said once a certificate was submitted and accepted for a particular party, then the members were compelled to join the other party. He said that in the law, it was clear that an independent has to join a political party within three days but how the three days turned into 15-days? To a question, Aqeel Malik said he stands by the statement that he had made on votes for the constitutional amendment.