ISLAMABAD: A majority of eight judges of Supreme Court’s larger bench ruled that Pakistan Tehrik-e-Insaf PTI shall be entitled for allocation of reserved seats for women and minorities in the National Assembly as well as provincial assemblies.
The majority judges of SC including Justices Syed Mansoor Ali Shah, Munib Akhtar, Mohammad Ali Mazhar, Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan set aside the election commission of Pakistan’s order with regard to Pakistan Tehrik-e-Insaf nominated returned candidates and notifications with regard to allocation of reserved seats of woman and minorities in national and provincial assemblies.
SC’s majority judges held that Pakistan Tehrik-e-Insaf was and is a political party, which secured or won (the two terms being interchangeable) general seats in the National and Provincial Assemblies in the General Elections of 2024.
The majority of SC judges observed that 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 an election (whether general or bye) and to field candidates and the ECP is under a constitutional duty to act, and construe and apply all statutory provisions, accordingly.
The court directed ECP to notify the returned candidates of 80 national assembly constituenceis who either mentioned their party affiliation in nomination form with PTI or other remaining candidates after confirmation from them and their respective party.
The court observed that a political party may in any case, at any time after the filing of a statement of its own motion file its confirmation. The court observed that if statement of returned candidate is filed, and is confirmed by the political party concerned, then the seat secured by such candidate shall be forthwith deemed to be a seat secured by that political party.
The court ordered that PTI shall be entitled to reserved seats for women and minorities in the national and provincial assemblies accordingly. The court observed that PTI shall, within 15 working days of order file its lists of candidates for the said reserved seats and the provisions of the Elections Act, 2017 (“Act”) (including in particular s. 104) and the Elections Rules, 2017 (“Rules”) shall be applied to such lists in such manner as gives effect to this order in full measure.
The court orderd that ECP shall, out of the reserved seats for women and minorities in the national and provincial assemblies notify as elected in terms of the Article 51 Provisions, that number of candidates from the lists filed (or, as the case may be, to be filed) by the PTI as is proportionate to the general seats secured by it.
Chief Justice Qazi Faez Isa supported the judgment authored by Justice Jamal Khan Mandokhel which observed that impugned judgment of the Peshawar High Court and the order of the ECP to the extent of the proportional representation distribution of seats amongst the political parties which won and secured seats is also maintained. They however observed that since the ECP calculated and allocated the seats to the parties by the exclusion of the Pakistan Tehreek-e-Insaf (“PTI”) candidates, therefore, to such extent, the impugned judgment of the Peshawar High Court and the order of the ECP are set aside.
They observed that number of candidates had submitted their nomination papers declaring on oath that they belonged to PTI supported by an affiliation certificate of the said party, 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 to be members of PTI in the National and the Provincial Assemblies.
They observed that ECP by misinterpreting the judgment of SCP on January 13 2024, which was regarding non-holding intra-party elections in PTI, wrongly mentioned the said candidates of the PTI as independents in Form 33 of the Election Rules.
The judges observed that ECP had no authority to declare validly nominated candidates of a political party to be independent candidates.
“Similarly, a candidate once declared himself/herself as a candidate of a political party, could not subsequently resile from his/her candidature of a particular party, after the last date of withdrawal of the nomination papers, two SC’s judges observed.
They observed that neither the PTI nor any candidate affiliated with PTI approached either this court before or during the hearing of these proceedings, or the High Court to challenge the decision of the ECP, declaring them as independents. The judges observed that the candidates who had submitted their nomination papers declaring that they belonged to PTI and had not filed a document showing affiliation with another political party before the last date of withdrawal of the nomination papers, should have been treated as the parliamentary party of PTI, but the needful was not done by the ECP.
The judges also observed that PTI as a parliamentary party is entitled to the reserved seats and ECP should recalculate and reallocate the reserved seats amongst the political parties, including the PTI, as provided by Article 51(6)(d) and (e) of the Constitution.
The two judges held that candidates who had submitted their nomination papers by 24 December 2023, which was the last date of submission of nomination papers, and had declared themselves either as independent candidates or had left blank the relevant column in the nomination papers/declaration and were elected shall be considered to be independents.
The judges observed that Sunni Ittehad Council is a registered political party and every independent member of the National Assembly and of the Provincial Assemblies has a right to join it.
The judges observed that all those who joined the SIC are presumed to have done so out of their own free will. None of them claimed to have joined SIC because of any misunderstanding of any judgment, the law, compulsion, coercion or undue influence and it is not for this Court to presume otherwise.
Justice Yahya Afridi also noted in seperate note that PTI fulfils the conditions prescribed for a political party under the enabling provisions of the Constitution and the law to be allowed/allocated reserved seats for women and non-Muslims.
Justice Afridi observed that a candidate for a seat in the national assembly or the provincial assembly, who in his/her nomination paper has declared on oath to belong to PTI and duly submitted a certificate of the same political party confirming that he/she is the nominated candidate of PTI for the respective constituency, shall remain so, and cannot be declared independent, unless he/she submitted a written declaration to the Election Commission of Pakistan or Returning Officer to be treated as the candidate of another political party or as an independent candidate.
Justice Afridi observed that a returned candidate to the national assembly or the provincial assembly, who in his/her nomination paper has declared on oath to belong to PTI and duly submitted a certificate of the same political party confirming that he/she is the nominated candidate of PTI for the respective constituency, shall remain so, and this consistent position maintained by a returned candidate throughout the electoral process should be legally recognized by the Election Commission of Pakistan and such returned candidate cannot be treated as the returned candidate of another political party or as an independent returned candidate, and thus reserved seats for women and non-Muslims are to be allowed/allocated to PTI, accordingly
Justice Afridi also held that a candidate nominated by PTI for a constituency of the national assembly or the provincial assembly who, after being declared returned, joined another political party or sought to be treated as independent, raises serious concerns about disregarding the trust reposed in him/her by the voters, thus undermining the will of the people.
Justice Afridi observed that issuing definitive directions to the Election Commission of Pakistan qua the allocation of specific number of reserved seats for women and non-Muslims to a political party in the national assembly and the provincial assemblies would not be legally appropriate.
Justice Afridi directed ECP to decide the allocation of reserved seats for women and non-Muslims to political parties in the national assembly and the provincial assemblies in the light of the determinations made hereinabove after providing an opportunity of hearing to the parties concerned, and if required revisit its earlier decisions on the matter.
Two SC’s judges of Justice Amin-ud-Din Khan and Justice Naeem Akhtar Afghan, for reasons to be recorded later on, dismissed the petitions of SIC for alloction of reserved seats and upheld the judgment of the Peshawar High Court.
