Supreme Court issues 70-page detailed verdict in reserved seats case. Right to contest elections as a political party is a fundamental right guaranteed by Article 17(2) of the Constitution: SC. Courts must rise above political biases and interests.
ISLAMABAD - The Supreme Court of Pakistan on Monday announced the much-awaited detailed verdict following their short order passed on July 12, 2024 in the case of reserved seats for women and non-Muslims in the National and Provincial Assemblies.
In the 70-pages written judgment, the SC said that the Election Commission of Pakistan is not only an administrative body but also a guardian of electoral integrity and democracy’s legitimacy. It added that when election authorities engage in actions that undermine these principles, 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.
“When the Election Commission errs or makes significant mistakes impacting the electoral process, judicial intervention becomes necessary to rectify them and ensure electoral justice. The judiciary, tasked with ensuring electoral justice, must foremost preserve the will of the people. Election disputes are viewed through this lens, emphasising electoral integrity and democracy’s legitimacy to maintain public confidence in governance, maintained the judges.
They contended that in exercising its appellate jurisdiction under Article 185 of the Constitution, this Court cannot go beyond the pleadings. We are afraid, this contention is misconceived. It results from a misunderstanding of treating election disputes as mere civil disputes between two private parties, similar to other civil disputes.
The judgment said that the elections are a crucial part of the democratic process, and the public has a major stake in ensuring that they are held free and fair, unmarred by corrupt or illegal practices. Therefore, unlike ordinary civil cases, election cases involve substantial public interest. An election dispute is fundamentally different from other civil disputes, as it is not solely a dispute between two contesting parties but a proceeding where the constituency itself is the principal interested party.
It said that since election cases are a species of collective or public interest litigation, the proceedings therein are inquisitorial in nature. In these cases, any judicial intervention is to ensure justice for the constituency and to safeguard the integrity of the electoral system.
“The process of free and fair elections requires vigilant judicial monitoring to check the influence of any capricious or partisan election or executive authority. In this regard, courts have a critical responsibility to address lawless behaviour in the electoral process, as their inaction or delay could undermine the legitimacy and credibility of the whole election,” maintained the judgment.
It further said that in handling election disputes, the primary obligation of courts is to protect the electorate’s right to fair representation, ensuring that only candidates who have legitimately won the support of the electorate through fair processes assume office. Courts must rise above political biases and interests, focusing solely on legal and evidential matters to safeguard the electorate’s interests.
The SC added that as the highest court in the judicial hierarchy, this Court bears a profound duty to prioritise and protect the rights of the electorate, ensuring that their voice and representation in elected bodies are not compromised by procedural failings or errors in the electoral process.
It continued, “Unfortunately, the above legal position regarding the nature of election disputes and the responsibility of courts was not brought to the notice of the Bench by the learned counsel for the parties while making their arguments. However, eleven members of the Bench, being themselves aware of the above legal position, proceeded to inquire into the facts and points of law that were not presented before the court below, that is, the Peshawar High Court. Although these eleven members of the Bench disagreed to some extent on granting the eventual relief, their awareness of the true legal position as to the nature of election disputes and the responsibility of courts led them to a broader and more comprehensive judicial inquiry into all the relevant facts and law points concerning the election dispute involved in the present case, as set out next.”
The judgment noted that the fundamental rights enshrined in Articles 17(2) and 19 of the Constitution thus underscore the significance of political participation and freedom of expression, both of which are essential to the functioning of a representative democracy. Article 17(2) guarantees the right to form or join political parties, highlighting the vital role of political participation in safeguarding democracy, while Article 19 upholds the freedom of expression, which is integral to the electorate’s ability to influence the formation of government by expressing their choices through their votes. Together, these Articles emphasise the importance of electoral integrity and political justice, ensuring that every citizen’s voice and choice are heard and represented in the political process.
It said that penal actions can only be taken on the basis of express and clear provisions of law. The act attracting the penal consequence and the person responsible for it must fairly and squarely fall within the plain words of the law. Courts are not to strain or stretch the meaning of the words to bring the act or the subject within the ambit of penal provisions; in other words, the scope of penal provisions is not to be extended through liberal construction. Furthermore, if a penal provision is susceptible to two reasonable constructions, the one that does not extend the penalty is to be adopted. Any reasonable doubt or ambiguity is to be resolved in favour of the person who would be liable to the penalty, and the construction that avoids the penalty is to be adopted.
It also said that the specified penalty of non-allocation of an election symbol curtails the political party’s fundamental right to function and operate as a political party—a right implicit in the right to form a political party guaranteed by Article 17(2) of the Constitution.36 Therefore, Section 215(5) must be construed strictly.
The judgment said that no further penalty or consequence beyond the specified non-allocation of an election symbol can be inferred or assumed from Section 215(5). Additionally, no other constitutional or statutory right of the political party can be denied on the basis of the non-allocation of an election symbol under this provision.
The apex court ruled, “In light of the foregoing interpretation, we determine question (i) in the terms that the sole consequence of declaring a political party ineligible to obtain an election symbol under Section 215(5) of the Elections Act for failing to comply with the provisions of Section 209 regarding intra-party elections is the non-allocation of an election symbol to that party in subsequent elections—nothing more, nothing less.”
It added that this was the effect of the Commission’s order dated 22 December 2023 (upheld by this Court vide its order dated 13 January 2024), declaring PTI ineligible to obtain its election symbol under Section 215(5) of the Elections Act; other constitutional and statutory rights of PTI to function and operate as a political party were not thereby affected. With respect, it is observed that had this Court clarified this legal position in its order dated 13 January 2024, or had the Commission clarified it in its order dated 22 December 2023 or order dated 13 January 2024, the entire confusion regarding the status of PTI candidates or PTI’s right to reserved seats would not have occurred.
The Court declared the Explanation to Rule 94 of the Elections Rules 2017 ultra vires the Elections Act and the Constitution. It said the Commission has introduced an additional penal consequence of declaring a political party ineligible to obtain an election symbol under Section 215(5) of the Elections Act, and it has also infringed the constitutional right of a political party, conferred by Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution, to have its due share of proportional representation in the seats reserved for women and non-Muslims on the basis of general seats secured by such a political party. This Explanation has thus clearly gone beyond and against the provisions of the Elections Act and the Constitution.’
It said that the Explanation to Rule 94 of the Election Rules, being beyond the scope of Section 215(5) of the Elections Act and inconsistent with the provisions of Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution, is declared ultra vires the Elections Act and the Constitution, thus void and invalid.
The judgment said that being in complete agreement with the above three decisions of the Full Court Benches of this Court Benazir Bhutto and Nawaz Sharif) on the scope of Article 17(2), we hold that the right to participate in and contest elections as a political party through its nominated candidates is a fundamental right guaranteed by Article 17(2) of the Constitution. The various sections of the Elections Act, including Sections 66 and 67, merely serve to give effect to this right as machinery provisions. This right is not, nor can it be, extinguished by any provision of the Elections Act, including Section 215(5) thereof. Depriving a political party of participating in and contesting elections through its nominated candidates, it is reiterated, destroys the political existence of the party and is tantamount to its political extermination and virtual dissolution, which cannot be done except by the procedure and on the grounds provided in Article 17(2) of the Constitution. Similar would be the position if the candidates nominated by a political party are denied the status of being the candidates of that political party and are mentioned as independent candidates in the list of contesting candidates (Form-33), or such returned candidates are notified as independent returned candidates in the Section-98 Notification. Such actions of the Returning Officers and the Commission would also be ultra vires Article 17(2) of the Constitution, as they effectively nullify the party’s right to participate in and contest elections.
The judgment said that the order of the Commission, dated 2 February 2024, made on the application of Salman Akram Raja (a PTI candidate) was both unconstitutional and unlawful.
It further said that in view of the above, the Commission’s order dated 2 February 2024 and the Returning Officers’ act of mentioning PTI candidates as independent candidates in Form-33 were both unconstitutional and unlawful, and they are hereby declared as unlawful.
Regarding the validity of party tickets issued by Mr Gohar Ali Khan as Chairman PTI, the judgment said: “We find that the Commission failed to recognise that its order dated 22 December 2023 regarding the intra-party elections of PTI was not in force from 26 December 2023 (when the Peshawar High Court suspended the Commission’s order) to 13 January 2024 (when this Court restored the Commission’s order).” During this period, Gohar Ali Khan was holding the office of Chairman of PTI and had, therefore, validly issued party tickets to PTI candidates, including Salman Akram Raja.
The judgment said that the clarification dated 14 September 2024, passed by them on an application of the Commission, that PTI has not held intra-party elections, shall also be read as part of it.
The judgment underlined that, “as the Commission sought clarification of our short order dated 12 July 2024 in order to give effect to it, in terms of para 10 thereof, there was no legal requirement, nor did we find it necessary, to hear the parties before clarifying our own order on the point regarding which the Commission was unclear. Thus, we provided the above clarification without issuing notice to, or hearing, the parties on the Commission’s application.”
It clarified that PTI, which has been granted relief in the present case, is before us with an application for its impleadment as a party to the case.
It said that while doing complete justice in the exercise of its general power under Article 187(1) of the Constitution, this Court is not handicapped by any technicality or rule of practice or procedure, nor is the exercise of this power by the Court dependent on an application by a party.
It said that the observations of Justice Amin-ud-Din Khan and Justice Naeem Akhtar Afghan, in their dissenting note, do not behove Judges of the Supreme Court of Pakistan. They had written; “[if] 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 “[any) order of the Court which is not in consonance with the constitutional provisions is not binding upon any other constitutional organ of the State.”
The judgment said; “They may strongly express divergent opinions and make comments on each other’s views, highlighting reasons why they believe other Members have erred.”
The majority judges on the petition of Sunni Ittehad Council for the reserved seats in National and the Provincial Assemblies had declared that the Pakistan Tehreek-e-Insaf (PTI) for all practical purposes was and is the political party and the seats won by the PTI-backed independents should be given to that party.
It had directed the Election Commission of Pakistan to notification of 39 independents as the PTI candidates, while remaining 41 of the 80 candidates be allowed to submit the party certificates signed by its chairman and general secretary. (Wrongly notified as independent returned candidates, PTI’s nominated candidates)
The detailed judgment of the eight judges declared the Explanation in Rules 94 of the Election Rules ultra vires to the Elections Act, 2017 and the 1973 Constitution.
The Commission has been asked to calculate the share of proportional representation of PTI and other political parties in the reserved seats accordingly. “We want to underline that the principle of holistic and harmonious reading of closely interlinked provisions of the Constitution requires that the provisions of paragraphs (d) and (e) of Article 51 are to be read not only in conjunction with Article 63A(2) but also with Article 17(2) of the Constitution, which is also closely related thereto.
“We find that the right to so many of the reserved seats that are proportionate to the general seats won by a political party is also an integral part of the right to form a political party, as this right also gives the “life and Civil Appeal No. 333 of 2024 etc. 51 substance” to the said named fundamental right. Therefore, denial of the right to reserved seats proportionate to the general seats won by it would violate the fundamental rights of a political party guaranteed by Article 17(2) as well as the fundamental right to vote of the electorate that have voted for such political party guaranteed by Article19 of the Constitution,” said the SC.
It maintained, “PTI, its candidates and the electorate should not be made to suffer or be prejudiced by the unlawful acts or omissions of public functionaries, namely the Returning Officers and the Commission. Given that they have been deprived of their constitutional right to proportional representation in the reserved seats due to these unlawful acts and omissions, they are entitled, by virtue of an obligation of justice (ex debito justitiae), to be restored to that right and placed, insofar as possible, in the same position they would have been if such unlawful acts and omissions had not occurred.”
The judgment said that the Supreme Court under Article 187(1)73 of the Constitution: it is to be invoked and exercised by the Court to do complete justice in any case when there is no specific provision of law that covers or addresses the matter or issue involved. While exercising such general powers, the Commission or the Court must, however, make an endeavour to adhere to the spirit and substance of the provisions of law that, although not covering the matter or issue, are closely related to it, so that the legislative intent may be given effect to the maximum extent possible.
It declared, “We all (us eight and our three colleagues) agreed that due to unlawful acts and omissions of the Returning Officers and the Commission, PTI, its candidates and the electorate have suffered the loss of some of their constitutional and statutory rights, particularly their right to proportional representation in the reserved seats. However, we differed on how we could, by virtue of an obligation of justice (ex debito justitiae), restore them to that right and place them, insofar as possible, in the same position they would have been if such unlawful acts and omissions had not occurred.”
It also said that our learned colleagues (Hon’ble the Chief Justice and Justice Jamal Khan Mandokhail) have formed the opinion that “the candidates who had submitted their nomination papers declaring that they belonged to PTI and had not filed a document showing affiliation with another political party before the last date of withdrawal of the nomination papers, should have been treated 77” as PTI returned candidates. Whereas our learned colleague (Justice Yahya Afridi) is of the view 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,…unless he/she submitted a written declaration to the Election Commission of Pakistan or Returning Officer to be treated as the candidate of another political party or as an independent candidate78”. We respect their opinions but disagree.”