SC full bench declares PTI eligible for reserved seats. Justice Mansoor Ali Shah announces 8-5 majority verdict. Justice Afridi, Justice Amin-ud-Din Khan, Justice Naeem Akhtar Afghan write dissenting note, dismissing appeals. I agree with short order authored by Justice Jamal Khan Mandokhail, writes Chief Justice Qazi Faez Isa.

ISLAMABAD  -  A 13-member bench of Supreme Court of Pakistan on Friday declared Pakistan Tehreek-e-Insaf (PTI) as eligible for the reserved seats for women and minorities in the national and provincial assemblies.

The court nullified the decision of Peshawar High Court (PHC) and notifications of the ECP regarding the reserved seats, and also declared PTI as a political party.

Justice Mansoor Ali Shah announced the 8-5 majority verdict of the bench, headed by Chief Justice of Pakistan Qazi Faez Isa. Justice Syed Mansoor Ali Shah, Justice Athar Minallah, Justice Shahid Waheed, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Syed Hassan Rizvi, and Justice Irfan Saadat Khan favored the judgment.  

A nine-page written order of the top court said: “The impugned judgment dated 25.03.2024 of the high court is set aside. The order of the Election Commission of Pakistan (ECP) dated 01.03.2024 is declared to be ultra vires the Constitution.”

It further said: “The notifications of various dates, whereby the persons respectively mentioned therein, being the persons identified in the Commission’s notification, dated 13th of May, 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 to the Constitution, without lawful authority and of no legal effect, and are quashed from 6th of May 2024 onwards, being the date an interim order was made by the court in CPLA no. 13289 of 24, the leave petitions out of which the instant appeals arise.”

“It is 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 Commission is under a constitutional duty to act, and construe and apply all statutory provisions, accordingly.”

The order said, “It is declared that the Pakistan Tehreek-e-Insaf (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 herein after provided.”

It said: it is declared that out of the 80 returned candidates (now MNAs) those (being 39 in all and whose particulars are set out in Annex A to this Order) in respect of whom the Commission has shown “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.

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 notarized stating that he or she contested the General Election as a candidate of the political party specified therein. If any such statement(s) is/are filed, the Commission 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.

A political party may in any case, at any time after the filing of a statement as aforesaid, of its own motion file its confirmation. 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.

It said: “The Commission shall also forthwith 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 Court.”

The decision said: “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 PTI shall 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.

The court said: “The foregoing paras shall apply mutatis mutandis for purposes of the Article 106 Provisions in relation to PTI (as set out in para 5 herein above) for the reserved seats for women and minorities in the Khyber Pakhtunkwa, Punjab and Sindh Provincial Assemblies.”

“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”, it said.

‘Dissenting notes’

Supreme Court (SC)’s Justice Yahya Afridi in his dissenting note dismissed the appeals of Sunni Ittehad Council (SIC) pertaining to the reserved seats.

The note said: “Sunni Ittehad Council does not fulfil the conditions prescribed for a political party under the enabling provisions of the Constitution of Islamic Republic of Pakistan (“Constitution”) and the law to be allowed/allocated reserved seats for women and non-Muslims in the National Assembly or the Provincial Assemblies.”

It further said: “Pakistan Tehreek-e-Insaf (“PTI”) fulfils the conditions prescribed for a political party under the enabling provisions of the Constitution and the law to be allowed/allocated reserved seats for women and non-Muslims, in terms that:

A candidate for a seat in the National Assembly or the Provincial Assembly, who in his/her nomination paper has declared on oath to belong to PTI and duly submitted a certificate of the same political party confirming that he/she is the nominated candidate of PTI for the respective constituency, shall remain so, and cannot be declared independent. The reserved seats for women and non-Muslims are to be allowed/allocated to PTI, accordingly.

A candidate nominated by PTI after being declared returned, joined another political party or sought to be treated as independent, raises serious concerns about disregarding the trust reposed in him/her by the voters, thus undermining the will of the people.

Therefore, issuing definitive directions to the Election Commission of Pakistan,  the allocation of specific number of reserved seats for women and non-Muslims to a political party in the National Assembly and the Provincial Assemblies would not be legally appropriate.”

It further said: “Accordingly, the Election Commission of Pakistan is directed to decide the allocation of reserved seats for women and non-Muslims to political parties in the National Assembly and the Provincial Assemblies in the light of the determinations made herein above after providing an opportunity of hearing to the parties concerned, and if required revisit its earlier decisions on the matter. The needful be done within seven days of the receipt of this order.”

In their notes Justice Amin-ud-Din Khan, Justice Naeem Akhtar Afghan wrote: “For reasons to be recorded later, we dismiss the appeals, petition as well as CMAs and the judgment of the Peshawar High Court is upheld.

Chief Justice Qazi Faez Isa wrote, “I agree with the short order authored by Justice Jamal Khan Mandokhail. Justice Amin ud Din Khan said, “I have attached my separate short order dismissing all the appeals, petitions and applications and uphold the impugned judgment of the Peshawar High Court.” Justice Amin-ud-Din Khan wrote,“ I have appended my separate order.”