Top court snubs ECP for using dilatory tactics and seeking guidance on certain issues.  In written order, judges say application filed by ECP is misconceived.

ISLAMABAD   -  Supreme Court of Pakistan on Saturday rebuked the Election Commission of Pakistan (ECP) and ordered the body to implement its verdict on reserved seats, a decision that is most likely to benefit the Pakistan Tehreek-e-Insaf (PTI) party founded by jailed former PM Imran Khan.

The apex court order appears to be major setback to Prime Minister Shehbaz Sharif’s ruling coalition as it will potentially make Imran Khan’s PTI party as the single largest in both houses of Parliament after the February 8 general elections.

The order coincides with the reported planning of the government to introduce a constitutional amendment for which a two-third majority is required. If the Supreme Court order is implemented in letter and spirit, the PTI may emerge as the largest party in the National Assembly with its seats soaring with the addition of reserved seats. The PML-N has 87 general seats in the National Assembly and with the addition of 20 reserved seats for women and 4 for minorities, its strength goes to 111. After the SC order, the PTI has now 80 MNAs besides support of eight independents taking the total to 88.

The eight-member bench is yet to issue detailed judgment in the reserved seats case.

The written order of the top apex court issued on Saturday on the ECP’s request seeking guidance on certain legal and factual issues said that considering all evidence placed before the court left “little doubt that the clarification sought by the commission … is nothing more than a contrived device and the adoption of dilatory tactics, adopted to delay, defeat and obstruct implementation of the decision of the court. This cannot be countenanced. Even on the application of elementary principles of law, the application filed by the commission is misconceived”.

According to the order, the PTI had attached many notices to it by the ECP which identified Barrister Gohar Ali Khan as the party chairman and there were PTI documents as well identifying him as the chairman.

Thus, the court said: “Having itself recognised Barrister Gohar Ali Khan as the chairman of PTI, the commission cannot now turn around and purport to seek guidance from the court with regard to how the certifications are to be dealt with. The commission cannot approbate and reprobate, taking whatever [shifting] stance as it desires and as may seem to suit its immediate purposes for the moment.

“Furthermore, the ECP, 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.”

The order said that dissenting judges had also recognised Barrister Gohar’s validity as chairman, adding that this sufficed to act on the court’s reserved seats verdict.

“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.

“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,” the order warned.

On the issue of the reserved candidates themselves, the order noted that the court had “categorically declared” in its verdict that on filing the requisite statement and its confirmation by the political party concerned, the seat secured by such a candidate would immediately be deemed to be a seat secured by that political party.

The ruling Pakistan Muslim League-Nawaz (PML-N) party-led government on July 15 had filed a review petition in the Supreme Court against its decision to allocate reserved seats to PTI.

Earlier, a 13-member full bench of the apex court in a key 8-5 judgment on July 12 ruled that the PTI was eligible for the seats reserved for women and minorities in the National Assembly and provincial assemblies. The court had also declared PTI as a parliamentary party.

Earlier, the July 12 majority judgement explained that 39 out of the 80 members of the national assembly, shown by the Election Commission of Pakistan (ECP) as PTI candidates, belonged to the party, while the 41 independents would have to file duly signed statements before the commission within 15 days as it explained that they contested the February 8 elections as a candidate of a particular political party.

The ECP had subsequently sought clarification on some issues from the court which in its order stated that the clarification sought by the ECP was “nothing more than a contrived device and the adoption of dilatory tactics, adopted to delay, defeat and obstruct implementation of the decision of the court.”

The issues of reserved seats propped up soon after the February 8 elections when the PTI-supported independent candidates joined the Sunni Ittehad Council (SIC) but the ECP refused to allot it the reserved seats. The Peshawar High Court (PHC) had on March 14 rejected the appeal against the ECP ruling.

In April, the SIC filed a petition before the Supreme Court against the PHC judgment, which on May 6 suspended the PHC judgment as well as the March 1 ECP decision to deprive the SIC of seats reserved for women and minorities.

Finally, the apex court on July 12 adjudicated in the favour of PTI and declared it as a party eligible for reserved seats, but the ECP has so far not fully implemented the verdict.