• Full court bench rules 8-5 in favour of awarding reserved seats to PTI
• All 13 judges back PTI’s claim of being a parliamentary party
• 39 MNAs who declared party affiliation to be considered ‘PTI lawmakers’
• ECP told to seek statements from other independents within fortnight
• Once party okays their nominations, they will be notified as returned candidates
• Law minister says decision poses no threat to coalition govt that enjoys majority in NA
• Says judgement ‘tantamount to rewriting the Constitution’
ISLAMABAD: In a unique majority verdict, the Supreme Court has declared the opposition Pakistan Tehreek-i-Insaf (PTI) eligible to receive reserved seats for women and non-Muslims in the national and provincial assemblies, giving it a new lease on life in the legislature by declaring it to be a parliamentary party.
On Friday, as the full bench consisting of 13 judges settled into their seats inside Courtroom No.1, Chief Justice of Pakistan (CJP) Qazi Faez Isa asked Justice Syed Mansoor Ali Shah — the senior puisne judge — to announce the majority verdict he authored, which was supported by seven other judges: 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.
Despite the 8-5 split, all 13 judges declared the PTI a parliamentary party, much to the relief of PTI Chairman Gohar Ali Khan.
The majority judgement explained that 39 out of the 80 MNAs, shown by the Election Commission of Pakistan (ECP) as PTI candidates, belonged to PTI.
The rest of the 41 independents will now have to file duly signed and notarised statements before the commission within 15 days, explaining that they contested the Feb 8 general elections as a candidate of a particular political party.
If such a statement is filed, the ECP will give notice to the concerned political party, seeking a confirmation within 15 days that those MNAs had indeed contested as its candidates.
Thereafter, under Article 51 of the Constitution, ECP will post on its website a list of the returned candidates and will submit a compliance report before the apex court.
The order explained that under Article 51(5) of the Constitution, the PTI will be entitled to reserved seats for women and minorities in the National and provincial assemblies of KP, Punjab and Sindh according to the number of general seats secured by it.
In case ECP or PTI need any clarification, the majority judgement said, the commission can apply to the court by making an appropriate application, which will be put before judges constituting the majority in chambers, for directions as may be deemed appropriate.
The majority judgement set aside the March 25 PHC judgement and March 1 ECP decision to deny reserved seats to SIC as ultra vires of the Constitution, without lawful authority and of no legal effect, and thus quashed the same.
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 the elections, whether general or by-elections and the commission was under a constitutional duty to act, and construe and apply all statutory provisions, accordingly, the majority judgement said.
It declared that under Article 51(6)(d)(e) and Article 106 of the Constitution, PTI was and is a political party, which secured or won the general seats in the National and provincial assemblies in the Feb 8, 2024 elections.
Minority view
Later, Chief Justice Qazi Faez Isa read out the minority judgement, written by Justice Jamal Khan Mandokhail, which also declared the PTI a parliamentary party.
But the minority view explained that those who joined the Sunni Ittehad Council (SIC) were presumed to have done so out of their own free will. None of them claimed to have joined the party because of any misunderstanding of any judgement, the law, compulsion, coercion or undue influence and it was not for the Supreme Court to presume otherwise.
“We must ensure that words are not read into the Constitution nor to ascribe artificial meaning to commonly understood words,” said the minority view adding, we must also abide by validly enacted laws and must not do anything either to hinder or facilitate a political party by ignoring the laws mandate.
Meanwhile, Justice Yahya Afridi ordered the ECP to decide the allocation of the reserved seats to the political parties in the National and provincial assemblies after providing an opportunity to the parties concerned and, if required, to revisit its earlier decision within seven days.
Justice Aminuddin Khan and Justice Naeem Akhtar Afghan, however, rejected the appeals by the SIC and upheld the March 25, 2024 Peshawar High Court (PHC) judgement, denying them the reserved seats.
The minority view explained that women and non-Muslims cannot be deprived of this right by leaving these seats vacant, therefore the reserved seats must be filled in, as provided by Article 224(6) of the Constitution. The impugned judgement however set aside PHC and ECP order to the extent of ECP calculating and allocating the reserved seats to the parties by exclusion of PTI candidates.
During the hearing, it transpired that a number of candidates had submitted their nomination papers declaring on oath that they belonged to PTI supported by an affiliation certificate, though some did not submit affiliation certificates of PTI, however, since they stated on oath that they belonged to PTI and did not contradict themselves, they should be considered PTI members, the minority judgement said.
It said the ECP, by misinterpreting the Jan 13 judgement, mentioned these PTI candidates as independents. The ECP had no authority to declare validly nominated candidates of a political party to be independent candidates, the minority judgement explained.
Justice Yahya Afridi dismissed the petitions of SIC, since the party did not fulfil the conditions prescribed for a political party to be allocated reserved seats for women and non-Muslims in the National Assembly or the provincial assemblies.
‘Out-of-the-box’ solution
“This is an out-of-the-box solution,” a senior counsel told Dawn on condition of anonymity soon after the short order was announced.
Outside the courtroom, jubilant PTI supporters, especially the women who had turned out in large numbers, were chanting slogans in favour of jailed PTI founder Imran Khan and appreciating the Supreme Court’s verdict.
Senior counsel and PTI leader Hamid Khan called the “historic” verdict a first step towards ameliorating a series of wrongdoings and injustices done to the PTI.
Former additional attorney general Tariq Mehmood Khokhar said the Supreme Court’s majority opinion was a welcome relief to a nation deeply mired in existential crises.
“It is a step back from the brink; it is a triumph for the Constitution, democracy and the independence of the judiciary,” he said.
The senior puisine judge along with his concurring brother judges has righted a grievous wrong. It portends well for the future, he said adding an institution publicly reviled for its history of failures and tattered moral authority appears to rise above its former self, he said.
Senior counsel Chaudhry Faisal Hussain said the verdict, as expected, was unambiguous and crystal clear. “Complete justice has been done by the court.”
“The will of people have been protected by the Supreme Court,” he said, adding that it was indeed a big day for democracy and rule of law.
The majority judgement has deviated from the cursed convention that stemmed from the Tameezud Din Khan case, and has saved democratic norms by restoring the status of PTI as a political party, he said, adding that the verdict also ended the confusion caused by ECP by denying PTI its election symbol.
Senior counsel Mahmood Awan was of the view that the judgement only goes to prove that the judiciary remains the only independent institution and that when it comes to important constitutional questions, the judges of the Supreme Court were guided by their conscience.
“They may approach important questions with certain biases or approach-preferences but in the end they are only dispensing justice, without fear and just a little bit of favour,” he observed.
Advocate Hafiz Ahsaan Ahmad Khokhar described the judgement as another example of judicial activism and said another verdict passed within two years to be described as rewriting into the constitution or reading into the constitution when more specifically the allocation of reserved seats have been reinserted for PTI when no such request was made before the court.
Published in Dawn, July 13th, 2024
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