• Orders immediate implementation of verdict
• Warns failure to fulfil court’s legally binding obligation will have consequences
• ECP official says PTI’s intra-party elections still under challenge

ISLAMABAD: The Supreme Court dealt a major blow to the PML-N-led coalition government on Saturday, as it reprimanded the Election Commi­ssion of Pakistan (ECP) for not implementing its July 12 judgement that declared the opposition PTI eligible for the reserved seats in parliament, further complicating the Sheh­baz administration’s efforts to secure the required numbers to pass a constitutional package on the judiciary.

The highly anticipated constitutional package, which seeks to establish a three-year tenure for the chief justice of Pakistan, could not be tabled on Saturday for which simultaneous sessions of the Senate and National Assembly had been convened. Both houses were ultimately adjourned until Sunday (today).

The Supreme Court clarified that as per the position, 41 returned candidates, out of a total of 80 MNAs, are and remain members of the PTI and, consequently, members of the PTI’s parliamentary party in both the national and provincial assemblies, for all constitutional and legal purposes.

The court’s order dashed the government’s hopes of securing a two-thirds majority in the National Assembly, as it had intended to capitalise on the 41 vacant seats that were initially allocated to the PTI according to the July 12 short order.

Led by senior puisne judge Justice Syed Mansoor Ali Shah and signed by seven judges who constitute majority in the 13-judge full court, the Supreme Court also warned that the ECP’s continued failure or refusal to fulfil its legally binding obligation may have consequences.

The July 12 short order had directed the ECP to verify that the remaining 41 independent candidates, out of a total of 80 MNAs, had contested the election as PTI candidates, after they submitted statements to the commission within 15 days, affirming that they participated in the Feb 8 general election as members of the aforementioned political party.

The clarification by majority judges was in fact a response to the ECP’s August 7 petition requesting the top court to review its July 12 short order which, according to the commission, erroneously granted relief to the PTI, as neither the party nor its purported candidates had approached the ECP, Peshawar High Court, or the Supreme Court to claim reserved seats for women or non-Muslims. The clarification prompted former additional attorney general Tariq Mehmood Khokhar to remark that the ECP had effectively received a scathing indictment from the Supreme Court. He noted that the court had taken judicial notice of ECP’s alleged anti-democratic and unlawful actions, putting it on notice for potential legal repercussions, which may include possible unconstitutional conduct and contempt of court.

Significantly, the court order may hinder the proposed constitutional amendment package, he said, adding that battle lines had been drawn between two constitutional institutions.

For once, the majority of the Supreme Court is on the right side of history, opposing a publicly disparaged and dysfunctional institution, he added.

Senior counsel Salahudin Ahmed was of the opinion that the majority order had a significant impact, declaring that PTI candidates elected to reserved seats were deemed to be MNAs/MPAs belonging to PTI by operation of law, regardless of the ECP’s failure to issue the necessary notification. Practically speaking, in the current context, this makes the passage of any constitutional amendment more challenging, while also signalling that the majority in the Supreme Court remains united, he noted.

In its order, the Supreme Court took exception to the ECP’s attempt to confuse and cloud what, according to the court, otherwise was absolutely clear as a matter of the Constitution and the law. Thus this must, therefore, be strongly deprecated, the order said, adding that the list required to be issued by the commission in terms of the July 12 short order was nothing more than a ministerial act, for the information and convenience of all concerned, and has no substantive effect.

“Nonetheless, the continued failure of, and refusal by, the commission to perform this legally bin­ding obligation may, as noted, have consequences,” the order said, adding that this obligation must be discharged forthwith.

“The clarification sought by 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 Supreme Court. This cannot be countenanced,” the judgement regretted.

Even on the application of elementary principles of law, the application filed by the ECP is misconceived, the judgement said, adding that having itself recognised Barrister Gohar Ali Khan as chairman of PTI, the ECP cannot now turn around and purport to seek guidance from the court with regard to how the certifications were 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,” the order said, adding: “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 were protected even if there may be (and no such conclusion is reached here in relation to PTI) any issue with the position de jure.”

The order stated: “It sufficed and the commission was duty bound in terms of the Constitution to keep in mind that the admitted position was that PTI was, and is, an enlisted political party.

“This position was not only accepted and relied upon by eight judges but also by three colleagues in the minority, namely Chief Justice Qazi Faez Isa, Justice Yahya Afridi and Justice Jamal Khan Mandokhail.

“Their lordship appears to have also accepted the validity of the party certificates (party tickets) issued by Barrister Gohar Ali Khan and thus his capacity to act for PTI as its chairman. Furthermore, having itself issued notices to PTI through Barrister Gohar Ali Khan as its chairman, the commission gave recognition to both the party and the office holder.

“That sufficed absolutely for purposes of the short order. It would be completely illogical to assume that a political party, a juristic person, was fully functional yet there were no natural persons who were either de facto or de jure performing its functions or running its affairs.

“By saying 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.

“The continued denial and refusal of ECP 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.”

When contacted, a senior ECP official told Dawn the commission was most likely to ponder over the Supreme Court’s judgrment on Monday.

He said Chief Election Commissioner Sikandar Sultan Raja was supposed to undertake a visit to Layyah on Monday, which he has cancelled now.

He, however, expressed surprise over the verdict, saying that PTI’s intra-party elections were still under challenge and the party has no organisational structure.

Published in Dawn, September 15th, 2024