Election authorities denying major political party recognition infringes upon electorate’s rights: SC

The Supreme Court on Monday released its detailed verdict on the July 12 order in the reserved seats case, which had declared the PTI a parliamentary party.

The 8-5 majority July order had declared ex-premier Imran Khan’s PTI eligible for seats reserved for women and minorities, dealing a major setback to Prime Minister Shehbaz Sharif’s ruling coalition.

Highlights from SC verdict:

• Election authorities denying major political party recognition infringes upon electorate’s rights
• “Unlawful acts” of ECP, ROs caused prejudice to PTI, electorate
• ECP failed to perform its role as ‘guarantor institution’ of democratic processes
• Dissenting notes ‘fall short of courtesy, restraint required of superior court judges’

Justice Syed Mansoor Ali Shah had announced the majority verdict, which was supported by seven other judges: Justices Munib Akhtar, Muhammad Ali Mazhar, Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan.

The case had been heard by a 13-member bench — Chief Justice of Pakistan (CJP) Qazi Faez Isa and Justice Jamal Khan Mandokhail had penned a minority judgment; Justices Aminuddin Khan and Naeem Akhtar Afghan in their ruling had rejected the pleas for reserved seats; and Justice Yahya Afridi had ordered the electoral watchdog to decide the matter.

The eight judges had ruled that out of a list of 80 MNAs, 39 belonged to the PTI, and gave 41 others the chance to resubmit their party affiliation. Despite the 8-5 split, 11 out of the 13 judges had declared the PTI a parliamentary party.

The 70-page judgment released today, available on the SC’s website, was authored by Justice Shah, who is set to succeed incumbent CJP Isa as the top judge in October.

The verdict states: “When election authorities engage in actions […] such as unlawfully denying the recognition of a major political party and treating its nominated candidates as independents, they not only compromise the rights of these candidates but also significantly infringe upon the rights of the electorate and corrode their own institutional legitimacy.”

“The importance of free and fair elections in a democracy cannot be overstated. The judiciary’s role in ensuring electoral integrity and upholding the will of the people is essential for sustaining public trust in the democratic process,” the order read.

The SC asserted that the “court’s power to do ‘complete justice’ is a critical tool in preventing democratic backsliding and protecting democracy effectively”.

The eight-judge order also expressed “some doubts” about whether the Election Commission of Pakistan (ECP) had the “power to reject the certificate of intra-party elections submitted by a political party under Section 209, and whether the Commission exercised its discretion under Section 215(5) justly, fairly and reasonably in PTI’s case”, emphasising that the “fundamental right of citizens to vote for the political party of their choice was at stake”.

“Similarly, we have certain reservations about how the matter of intraparty elections — a matter of internal governance of party — can trump the fundamental rights of citizens to vote and of political parties to effectively participate in and contest elections through obtaining a common symbol for their candidates, guaranteed under Articles 17(2) and 19 of the Constitution.

“However, since these questions are sub judice in the review petition filed by PTI against this Court’s judgment dated 13 January 2024, we abstain from examining and expressing our definitive view on them,” the verdict said, referring to the SC ruling denying the PTI its party symbol.

The verdict stated that Justice Mazhar wished to “make clear that nothing in this paragraph is intended to or will impact upon the hearing of the review petition”.

Furthermore, the judges stated that their clarification dated September 14, passed on the ECP’s application, “shall also be read as part of this judgment”. The clarification had rebuked the ECP for its “adoption of dilatory tactics […] to delay, defeat and obstruct implementation” of the SC ruling.

ECP’s ‘unlawful acts’ caused prejudice to PTI, electorate

In its majority verdict, the SC also observed that the returning officers (ROs) and the ECP’s numerous “unlawful acts and omissions” had “caused confusion and prejudice to PTI, its candidates and the electorate who voted for PTI”.

“PTI’s nominated candidates were wrongly shown 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 Commission,” the judgment read.

It noted that “after the intra-party elections (which were not later accepted by the Commission), Gohar Ali Khan had assumed at least de facto charge of PTI’s functions and affairs as its chairman”.

Therefore, the SC said, the “acts performed by him on behalf of PTI” before January 13 — when the court restored the ECP verdict of not letting PTI retain its electoral symbol for the general elections — were “fully valid and effective”.

“In the present case, […] the unlawful acts and omissions of the Returning Officers and the Commission, which have caused confusion and prejudice to PTI, its candidates and the electorate who voted for PTI, are numerous,” the order read.

ECP failed to perform its role as ‘guarantor institution’ of democratic processes

The SC verdict noted that ECP “in its role as a guarantor institution and impartial steward, is tasked with ensuring the transparency and fairness of elections to maintain public trust in the electoral system”.

“This is essential for the legitimacy of elected representatives and the stability of the political system. The Commission must uphold democratic principles and the integrity of electoral processes by ensuring that elections truly reflect the will of the people, thereby preserving the democratic fabric of the nation,” it stressed.

“Unfortunately, the circumstances of the present case indicate that the Commission has failed to fulfil this role in the general elections of 2024,” the apex court observed.

It highlighted 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’, adding it must “fully recognise its constitutional position and the critical role it plays in a democracy”.

It went on to state: “Another matter that has surprised us during the proceedings of these appeals is the way the Commission participated in and contested the matter before us as a primary contesting party against SIC and PTI.

The verdict noted the ECP’s prime function, under Article 218(3) of the Constitution, was to “organise and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly, and in accordance with law, and that corrupt practices are guarded against”.

“This function of the Commission, ‘to organise and conduct the election’, as held by this court in Aam Log Itehad, is primarily executive, not judicial or quasi-judicial. However, as found in the said case, the Commission also performs some quasi-judicial functions,” the apex court highlighted.

“In the present case, several political parties made counterclaims regarding their right to the disputed reserved seats, and the Commission decided these counterclaims as an adjudicatory body,” the verdict said, referring to the arguments presented by the ruling coalition partners.

The function performed by the Commission in the present case was, therefore, quasi-judicial. […] A body performing its quasi-judicial function in a matter between two rival parties cannot be treated as an aggrieved person if its decision is set aside or modified by a higher forum or by a court of competent jurisdiction.

“Such a body, therefore, does not have locus standi to challenge the decision of that higher forum or court. Nor, we may add, can such a body contest an appeal filed against its quasi-judicial decision by one of the rival parties as a primary contesting party.

“In the present case, the Commission was a proper party to assist the court in effectually and completely adjudicating upon and settling all the questions involved in the case. It should have acted in this manner, not as a primary contesting party,” the verdict stated.

List of 80 MNAs

The verdict listed the 80 MNAs — a list of whom the ECP had submitted — who had “either filed party certificates (party tickets) of PTI or declared their affiliation with PTI in their nomination forms or statutory declarations/affidavits”, according to the judgment.

Out of the 80, the judges noted that 39 MNAs “were and are the returned candidates whose seats were and have been secured by the PTI”, and for whom the ECP had “shown ‘PTI’ in any one of the aforesaid columns in the list”.

The rest 41 MNAs were “treated as independent returned candidates because they had not mentioned themselves as belonging to PTI in their nomination papers”, the order read.

Dissenting notes ‘fall short of courtesy, restraint required of superior court judges’

The verdict concluded with a note of disappointment for the manner in which Justices Khan and Afghan expressed their disagreement with the July 12 order.

“Before parting with the judgment, we feel constrained to observe, with a heavy heart, that our two learned colleagues in the minority (Justice Aminuddin Khan and Justice Naeem Akhtar Afghan) have made certain observations in their dissenting judgment dated 3 August 2024, which do not behove Judges of the Supreme Court of Pakistan, the highest court of the land.

“After expressing their view that the order we passed on 12 July 2024 is not in accordance with the Constitution and that we ignored and disregarded its mandate, they observed that ‘[i]f the said 39 plus 41 persons take any step on the basis of this judgment which is not in accordance with the Constitution, they may lose their seats as returned candidates on the basis of violation of the Constitution’, and that “[a]ny order of the Court which is not in consonance with the constitutional provisions is not binding upon any other constitutional organ of the State.”

“We take no issue with their having and expressing the view that, in their understanding, our order dated 12 July 2024 is not in accordance with the Constitution, as members of a bench of this court, or any court, can legitimately differ on issues of fact and law.

“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 verdict stated.

It continued: “What is more disquieting is that, through the said observations, they appear to have gone beyond the parameters of propriety by warning the 39 plus 41 (80) returned candidates and urging the Commission not to comply with the majority order, which is the decision of a 13-member full court bench of this 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,” the detailed verdict concluded.