SC gives poll watchdog a tongue-lashing

Issues detailed verdict in reserved seats case, says ECP could not act as an aggrieved party, observes Jan 13 ord

ISLAMABAD:

In its much-anticipated detailed verdict in the PTI reserved seats case, the apex court has noted that the country's polls oversight authority—the Election Commission of Pakistan (ECP)—has "failed" to perform its constitutional role as a fundamental "guarantor of democratic processes".

The Supreme Court on Monday finally issued its 70-page detailed verdict in the reserved seats case. The verdict penned by SC Senior Puisne Judge Syed Mansoor Ali Shah was endorsed by seven other judges.

The ECP on December 22, 2023 voided the PTI's intra-party polls and stripped it of its election symbol. A three-member Supreme Court bench led by Chief Justice of Pakistan (CJ) Qazi Faez Isa upheld the ECP order on January 13, compelling the PTI candidates to contest the Feb 8 elections as independents.

Eighty such independent candidates reached the National Assembly and later joined the Sunni Ittehad Council (SIC) in an apparent bid to claim reserved seats for women and minorities. The ECP, however, refused to allocate the seats to the party, a decision that the SIC challenged in the SC.

On July 12, the Supreme Court by a majority of 8 to 5 resurrected the PTI as a parliamentary party as it set aside the ECP's decision not to allocate reserved seats for women and minorities to the former ruling party in the National Assembly as well as provincial legislatures through a short order.

The majority judges issued their detailed order on Monday after a delay of over two months.

Enumerating the reasons for setting aside the ECP order, the court said the ECP as a constitutional electoral management body is not merely an administrative entity but a fundamental "guarantor institution" of democratic processes, with a status akin to a "fourth branch of government".

"The commission must therefore fully recognize its constitutional position and the critical role it plays in a democracy while performing its duty to conduct free and fair elections.

"As a central pillar of democratic electoral processes, the commission, in its role as a guarantor institution and impartial steward, is tasked with ensuring the transparency and fairness of elections to maintain public trust in the electoral system.

"This is essential for the legitimacy of elected representatives and the stability of the political system."

It emphasized that the ECP must uphold democratic principles and the integrity of electoral processes by ensuring that elections truly reflect the will of the people, thereby preserving the democratic fabric of the nation.

"Unfortunately, the circumstances of the present case indicate that the Commission has failed to fulfill this role in the general elections of 2024," the order said.

The verdict said the way the ECP participated in and contested the matter of allocation of reserved seats before the Supreme Court during the proceedings of the appeals surprised the bench as the polls oversight authority acted as a primary contesting party against the PTI.

"We are aware that the Commission's prime function, under Article 218(3) of the Constitution, is to 'organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly, and in accordance with law, and that corrupt practices are guarded against.

"This function of the commission… is primarily executive, not judicial or quasi-judicial. However, as found in the said case, the Commission also performs some quasi-judicial functions."

The court noted that several political parties made counterclaims regarding their right to the disputed reserved seats, and the ECP decided these counterclaims as an adjudicatory body.

"The function performed by the Commission in the present case was, therefore, quasi-judicial. And, as held by this Court in Wafaqi Mohtasib 82 and A Rahim Foods, 83 a body performing its quasi-judicial function in a matter between two rival parties cannot be treated as an aggrieved person if its decision is set aside or modified by a higher forum or by a court of competent jurisdiction.

"Such a body, therefore, does not have locus standi to challenge the decision of that higher forum or court. Nor, we may add, can such a body contest an appeal filed against its quasi-judicial decision by one of the rival parties as a primary contesting party.

The court, however, noted that the ECP acted as an aggrieved party when the PTI (SIC) challenged its order with regards to non-allocation of reserved seats in the Peshawar High Court (PHC).

"In the present case, the commission was a proper party to assist the court ineffectually and completely adjudicated upon and settled all the questions involved in the case. It should have acted in this manner, not as a primary contesting party."

The court noted that when the ECP 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 people's will. Election disputes are viewed through this lens, emphasizing electoral integrity and democracy's legitimacy to maintain public confidence in governance.'

According to the majority order, electoral justice is vital to protecting political and electoral rights and is intertwined with electoral integrity while the role of the Supreme Court of Pakistan in overseeing electoral integrity is crucial for sustaining public trust in the democratic process.

"The court's power to do 'complete justice' is a critical tool in the constitutional arsenal of this court, enabling it to prevent democratic backsliding, and protect democracy effectively with a focus on the electorate's rights. Denying electoral justice and compromising electoral integrity would undermine the very legitimacy of democracy," it said.

The order said 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. These cases involve not just the rights of the contesting candidates or political parties but also the rights of the voters, constituencies, and the public.

"Election cases aim to fill public offices with properly qualified and duly elected candidates and to maintain the purity of elections, ensuring that no one takes charge of a public office through flagrant breaches of election laws or corrupt practices.

"The proceedings in election cases thus have unique characteristics because they serve the interests of the entire constituency, differentiating them from ordinary civil proceedings.

"This distinction clearly demonstrates the flaw in treating an election case as an ordinary civil case and limiting the judicial inquiry to the pleadings of the parties as it is in adversarial proceedings."

Commenting on the ECP's Dec 22, 2023 decision to void the PTI's party polls, the court said 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 in subsequent elections—nothing more, nothing less.

"Furthermore, such a declaration does not affect the political party's other constitutional and statutory rights. 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 the PTI to function and operate as a political party were not thereby affected.

The verdict stated that if the Supreme Court bench led by Chief Justice Qazi Faez Isa which upheld the ECP's decision to strip the PTI of its election symbol on January 13 clarified this legal position in its order or had the ECP clarified it in its order dated December 22, 2023, the entire confusion regarding the status of the PTI candidates or the PTI's right to reserved seats would not have occurred.

The bench also expressed "some doubts" about the ECP's power to reject the certificate of intra-party elections submitted by a political party under Section 209.

"[We also have doubts] as to whether the ECP exercised its discretion under Section 215(5) justly, fairly, and reasonably in the PTI's case, particularly when the election programme had been announced and the fundamental right of citizens to vote for the political party of their choice was at stake.

"Similarly, we have certain reservations about how the matter of intra party elections—a matter of internal governance of a party—can trump the fundamental rights of citizens to vote and of political parties to effectively participate in and contest elections by obtaining a common symbol for their candidates, guaranteed under Articles 17(2) and 19 of the Constitution.

"However, since these questions are sub judice in the review petition filed by PTI against this court's judgment dated 13 January 2024, we abstain from examining and expressing our definitive view on them," it added.