SC rebukes ECP for 'misconceived' plea
In a major legal setback to the ruling coalition on the eve of an anticipated constitutional bill, the Supreme Court on Saturday rebuked the "misconceived" request by the Election Commission of Pakistan (ECP) seeking clarification from the top court on its verdict in the reserved seats case and ordered the immediate implementation of its original directions.
"Putting together the record placed before us [top court], and considering the same in light of the short order, leaves in little doubt that the clarification sought by the commission is nothing more than a contrived device and adoption of dilatory tactics," the eight judges stated in a clarification.
On July 12, a 13-judge full bench of the apex court had declared that the opposition PTI was eligible to receive reserved seats for women and non-Muslims in the national and provincial assemblies, dealing a major setback to Prime Minister Shehbaz Sharif's ruling coalition and potentially making the PTI the single largest party in both houses of Parliament.
The Supreme Court had also declared the PTI a parliamentary party. The majority judgement explained that 39 out of the 80 MNAs, shown by the ECP as PTI candidates, belonged to the party. The rest of the 41 independents would have to file duly signed and notarised statements before the commission within 15 days, explaining that they contested the February 8 general elections as a candidate of a particular political party.
After notifying 39 out of 80 Members of the National Assembly (MNAs) as PTI members, the electoral watchdog had sought legal and constitutional guidance from the apex court on the matter of the remaining lawmakers in the national and provincial assemblies.
An eight-judge bench, which ruled on the reserved seats issue concerning the Sunni Ittehad Council (SIC), instructed the Election Commission of Pakistan (ECP) to immediately release the list of Pakistan Tehreek-e-Insaf (PTI) returned candidates.
The apex court's four-page statement made it clear that the absence of an election symbol does not void a political party's legal and constitutional rights.
"The PTI remains a recognised political party and has secured seats in both national and provincial assemblies," the judges stated.
The order said 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 commission, 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.
"Therefore, upon submission of the declarations and certifications referred to above, the position of the returned candidates (now respectively MNAs and MPAs) immediately and ipso facto stood determined and fixed as a matter of law as on those dates and no subsequent act can alter what became, on the respective dates, past and closed transactions.
"As per the position so determined, the said returned candidates were and are the returned candidates of PTI and thus members of the parliamentary party of PTI in the National Assembly and provincial assemblies concerned, for all constitutional and legal purposes.
"The attempt by the commission to confuse and cloud what is otherwise absolutely clear as a matter of the Constitution and the law must therefore be strongly deprecated. The list required to be issued by the commission is 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. This obligation must be discharged forthwith," the order stated.