Qamar Bashir
Former Press Secretary to the President
Former Press Minister to the Embassy of Pakistan to France
Former MD, SRBC, CEO, ATV
In its landmark 70-page detailed judgment, the Supreme Court upheld the supremacy of the people’s will in the election process, dismissing the government’s narrative that PTI received undue relief despite not being a party to the dispute. The Court made a clear distinction between election petitions and civil cases, emphasizing that an election petition represents the collective will of the constituency and the public interest, unlike a civil suit, which involves only two parties. Citing Morris J. ‘s 1875 Tipperary Election Case and Grove J. in Aldridge, the Court highlighted that election petitions are fundamentally about ensuring the rights and interests of the electorate and the purity of the election process.
The Supreme Court’s judgment emphasized that an election petition is not just a dispute between candidates but a matter of public interest, where all citizens have a vested stake in ensuring elections are fair, free, and untainted by corrupt practices. The Court underscored its obligation to protect the electorate’s right to fair representation, ensuring that only candidates who have genuinely won through legitimate means assume office.
It stressed that courts must remain impartial and focus solely on legal and evidential matters to maintain electoral integrity. The judgment rejected the Election Commission and government’s attempts to undermine the election process by highlighting procedural errors, instead basing its decision on a correct legal interpretation that reinforced the people’s mandate and strengthened democratic governance by ensuring the accurate and fair representation of the electorate’s will.
The judgment criticized the legal representatives of all parties involved in the case for failing to highlight the correct legal position regarding the nature of election disputes and for not presenting strong arguments. As a result, the Court took it upon itself to bring out the relevant facts and legal points, granting the eventual relief through a broader and more comprehensive judicial inquiry into the election dispute at hand.
While addressing the core issue of depriving PTI of its election symbol and its fundamental right to contest elections as a political party, the judgment criticized the Election Commission’s order dated 22 December 2023, which was upheld by the Supreme Court in its order dated 13 January 2024. The Court held both the Election Commission and the Supreme Court responsible for creating confusion regarding the status of PTI candidates and PTI’s entitlement to reserved seats. It observed that if the Supreme Court had clearly clarified its intentions in its earlier order, the question of the allocation of reserved seats would not have arisen.
The judgment took the Election Commission to task and charged it by framing the Rule 94 which provides the procedure for the calculation, allocation and notification of the share of proportional representation of political parties in the seats reserved for women and non-Muslims in contravention to the specific provision of the article 51(6)(d) & (e) and 106(3)(c) of the Constitution.
The judgment held the Commission responsible for violating the constitution by defining a political party as a party to which a symbol has been allocated by the Commission.’ By defining a political party in this manner, the Explanation excludes a political party that has not been allotted a symbol by the Commission from being allocated a share of proportional representation in the reserved seats.
This interpretation according to the judgment was self serving and extra constitutional as termed it infringement of 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.
The judgment declared that notwithstanding that a political party has been declared ineligible to obtain an election symbol, its nominated candidates cannot be mentioned as independent candidates in the list of contesting candidates (Form 33), despite allotment of different election symbols to them under Section 67(3) of the Elections Act, nor can they be notified as independent returned candidates in the Section-98 Notification.
The judgment emphasized that even if a political party fails to comply with the provisions of Section 209 of the Elections Act, which relates to intra-party elections, it remains an enlisted and fully functional political party. This means it retains its core purpose of ‘propagating or influencing political opinion and participating in elections for any elective public office or for membership of a legislative body, including an Assembly, the Senate, or local government.’
The judgment declared the Election Commission’s order dated 2 February 2024 and the Returning Officers’ action of labeling PTI candidates as independent candidates in Form-33 as unconstitutional and unlawful. It also criticized the Commission for its incorrect reliance on the Supreme Court order and for misinterpreting and misapplying observations that pertained to Section 215(5) of the Elections Act, rather than Sections 66 and 67.
The judgment unequivocally declared that PTI and its voters were deprived of their vested rights granted by the Constitution due to the unlawful actions and omissions of the Returning Officers and the Election Commission. It recognized that PTI, along with its candidates and electorate, suffered the loss of certain constitutional and statutory rights, particularly their right to proportional representation in the reserved seats.
The judgment acknowledged the coercion, intimidation, and pressure exerted on PTI, one of the largest political parties, by the combined force of the Commission and the Returning Officers. It highlighted that PTI was compelled, under significant duress and through the use of both kinetic and legal force, to forgo its election symbol and brand name and was forced into a situation where it had to merge with or join other political parties that were either parties in name only or had minimal public support.
The Supreme Court, in its judgment, set aside the High Court’s earlier decision where it conflicted with the current ruling and declared the Election Commission of Pakistan’s (ECP) order from 01.03.2024 as unconstitutional, without lawful authority, and nullified it.
It invalidated the notifications that declared certain individuals as returned candidates for reserved seats for women and minorities, affirming that PTI’s constitutional rights as a political party remain intact regardless of the denial of an election symbol. The Court recognized PTI as a party that secured general seats in the National and Provincial Assemblies in the 2024 General Elections. The Court specified procedures for confirming the party affiliation of returned candidates and clarified that PTI’s entitlement to reserved seats for women and minorities will be based on the total seats secured. The ECP was instructed to adjust the lists and notify the seats accordingly for both National and Provincial Assemblies, ensuring compliance with this judgment.
In the parting para the judgment, took note of the tone and observations made by the two dissenting judges, Justice Amin-ud-Din Khan and Justice Naeem Akhtar Afghan, in their judgment dated 3 August 2024 and observed that these two judges went beyond the limits of judicial propriety by warning the returned candidates and suggesting that the Election Commission should not comply with the majority decision of the thirteen-member Full Court Bench.
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