ISLAMABAD: A tug-of-war has started on the issue of seats reserved for women and minorities in the National and provincial assemblies with the Election Commission of Pakistan (ECP) and Pakistan Tehreek-e-Insaf (PTI) on Wednesday filing separate petitions in the Supreme Court.
The ECP in its review petition requested the apex court to recall its judgment delivered on July 12, declaring that the PTI was entitled to get the reserved seats, while the PTI challenged the Elections (Second Amendment) Act 2024, approved by parliament on Tuesday, with the prayer to declare it ultra vires of the Constitution.
The ECP through its secretary filed the review petition under Article 188 of the Constitution for review SC judgment in the appeal filed by the Sunni Ittehad Council (SIC) against the judgment of the Peshawar High Court and the electoral body. The ECP made the SIC and its Chairman Sahibazada Hamid Raza, Muttahida Qaumi Movement-Pakistan (MQMP), Pakistan Peoples Party Parliamentarians (PPPP), Pakistan Muslim League-Nawaz (PMLN) through their presidents and others as respondents. It prayed the apex court to accept the review petition by revisiting, reviewing, reconsidering and recalling its judgment in the interest of justice and equity.
The ECP contended that it has performed its duties under the law and the Constitution, and there has been no misinterpretation of any legal provision or any judgment passed by the apex court.
It claimed that it has followed the order of the Supreme Court passed in Civil Petition No 42/2024, in its letter and spirit; and decided the list before the ECP for reserved seats under the prevailing law and the Constitution.
“Without prejudice, the court could not have stepped into the constitutional role of the ECP under Article 218(3),” the electoral body contended, adding that even a decision passed on an incorrect interpretation of the law by a constitutional body must be remanded for reconsideration based on the correct interpretation. This must be done especially where the establishment of facts is necessary before any meaningful decision can be reached and the court is not in a position to conduct the in-depth fact-finding required.
Citing Article 51 sub-clauses (d) & (e) and Article 106 of the Constitution, the ECP submitted that it becomes apparent that reserved seats could only have been given to the party which actually contested the general election and won seats to amplify or bag the seats won by independents (who join such political party). “Since the SIC did not participate in the general elections, it could not be given such seats,” the ECP contended and questioned how could those seats then be given to the PTI, adding that neither the PTI was a party to the case nor it came forward as claimant of those seats.
The electoral body submitted that the effect of Article 63(A)(2) of the Constitution has clearly been ignored. A member of an assembly would be deemed to be a member of a parliamentary party if he, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such parliamentary party after elections by declaring in writing.
It further submitted that the 80 members gave a declaration in favour of the SIC and not the PTI, adding that they could have joined the PTI, if at all, but none of them did. The ECP contended that the judgment under review has rendered many provisions of the Elections Act redundant. “It is trite law of this land that no redundancy can be attributed to a provision of the statute under the garb of interpretation,” it contended, adding that so much so, by making room for one party, sections 57, 58, 66, 104 and many others of the Elections Act have been made superfluous. “Additionally, Articles 51(6)(d) & (e) and 106 besides Article 63(2), 63(A)(2) and 17 of the Constitution have also been brushed aside and have virtually been rewritten,” the ECP submitted.
It further submitted that the court did not grant relief to the SIC at all but yet went on to declare the order of the petitioner as ultra vires of the Constitution. “On one hand, the finding of the petitioner is kept intact while on the other hand, the same order dated 01.03.2024 is set aside,” the electoral body contended. Furthermore, the ECP claimed that it implemented the judgment to the extent of 39 candidates in due deference to the apex court, and also sought clarification from the court.
The electoral body sought the opportunity to raise and agitate further grounds once the detailed judgment is released. Identifying the error in the judgment, the ECP contended that primary relief had been granted to the PTI when neither the political party, nor persons claiming to be candidates of the PTI for reserved seats, nor any independent-returned candidates approached the ECP, a high court, or the Supreme Court to claim any seat out of the reserved seats.
The ECP submitted it seemed that the court had presumed certain facts which were not established, or run contrary to the pleadings and admitted facts on record: That in the instant matter, 80 returned candidates who contested General Election 2024 as Independent(s) submitted declarations to the effect that they have joined/ become members of the political party, SIC. These declarations were made knowingly, consciously and willingly, within the three days provided under Article 51 of the Constitution for such joining, and those declarations were made with the knowledge that: joining a party has certain incontrovertible and irreversible consequences; that SIC had not contested the General Election 2024 and thus had not secured any seat(s) or established a presence in the assemblies through the votes cast by the electorate in any constituency; and that SIC had not submitted a list of candidates for reserved seats for women and non-Muslims as required under Article 51 of the Constitution and Section 104 of the Elections Act 2017.
The independent-returned candidate took the decision to join the SIC fully armed with these facts and was aware of the legal consequences of their decision, and the court cannot presume otherwise. That even if subsequently a bid for reserved seats by the SIC failed, on the basis that it did not fulfil the necessary pre-requisites, those independent candidates who had joined it had to stand by the consequences of their own decision taken earlier, and the court could not redeem them from the same.
“That without prejudice, the court has seemingly presumed that, of the 80 independent returned candidates, 41 of them did not remain unaffiliated by their own choice, and that their declaration of ‘unaffiliated’ was without deliberate action and intention. Instead, the court has granted them an opportunity to remedy the same by retrospectively declaring a party affiliation. This presumption finds no basis in the pleadings, especially when it is considered that the 39 other independent returned candidates did, in some manner or other, declare a party affiliation,” the ECP submitted
It contended that the directions passed in the judgment have clearly been passed without considering that such directions outrightly discriminate in favour of a single political party by extending concessions and relaxing certain Articles of the Constitution, laws and rules only to the extent of that single party. “Without prejudice, even if it is presumed that these independent returned candidates were in fact affiliated with the PTI, and had joined the SIC only as a strategic move for the benefit of the PTI to gain control of reserved seats that would otherwise be denied to the PTI. The fact that this stratagem did not prove legally sound, does not entitle these independent candidates an opportunity to retrace their steps and disavow previous declaration made on oath, nor does it entitle the PTI to a fresh opportunity to submit its list of candidates for reserved seats when no such opportunity to change party allegiance has been provided to the other members of assemblies. No other political party has been given the right to file a fresh list of candidates for reserved seats,” the ECP submitted. It contended that the relief has been provided to accommodate only the PTI – the same is violative of Article 25 of the Constitution as all members must be treated equally and under the prevailing law.
The judgment has effectively re-set decisions taken by returned candidates and which stood crystallised, and such re-setting finds no place in either the law or the Constitution. Furthermore, this re-set has opened the doors for the practices of horse trading, floor crossing and other corrupt practices, which have been specifically deprecated by the apex court judgments, the ECP added. It submitted that the concept of “complete justice” in Article 187 of the Constitution is a well-recognised phenomenon with definite contours:
“(i) As per the settled law of this land, complete justice can be done only in the list pending before the Supreme Court and not otherwise. (ii) the power under Article 187 cannot be used to pass such directions as would make redundant statutory provisions and rules and expand the limits of the jurisdiction being exercised in a pending list. (iii) That the jurisdictions under Article 184(3) and 185(3) and 188 are distinct and separate and the lines between them cannot be blurred on the pretext of doing complete justice under Article 187.”
Meanwhile, PTI Chairman Barrister Gohar Ali Khan filed a petition in the apex court through advocate Salman Akram Raja under Article 184(3) of the Constitution making the Federation of Pakistan through the Ministry of Law and justice secretary and ECP through the chief election commission as respondents. The PTI prayed to the apex court that the Elections (Second Amendment) Act 2024 (Act) may kindly be declared to be ultra vires of the Constitution in its entirety and of no legal effect whatsoever.
The PTI chairman further prayed that during the pendency of the petition, the ECP may be restrained from allocating the reserved seats to any other political party. It prayed that the reserved seats may be directed to be allowed to the PTI and its candidates whose names are contained in the lists filed before the ECP in accordance with the July 12 judgment, and such candidates may be declared elected to the reserved seats. The plea seeks to challenge the subversion of the democratic process made by the Elections (Second Amendment) Act 2024 raises questions of immense public importance concerning the enforcement of fundamental rights. It contended that Section 1(2) of the Act reads: 1(2) This Act shall come into force at once and shall be deemed to have taken effect on and from the commencement of the Elections Act 2017 (XXXIII) of 2017)
The PTI submitted that apart from the other constitutional violations contained in the Act, the attempt to give it retrospective effect is non est, violative of the constitutional scheme and an assault on the democratic order put in place by the Elections Act 2017. It contended that past and closed transactions that have taken place in terms of the Constitution and the Elections Act 2017 prior to the enactment of the Act cannot be undone through the deemed retrospectivity purportedly assigned to the Act. “The expression of the will of the people once made cannot be retrospectively subjected to restrictions that were non-existent at the time, and that are in any case unconstitutional,” the PTI submitted, adding that actions taken by the people and their chosen representatives in exercise of their constitutional rights cannot be undone by parliament through legislation.
It contended that such legislation suffers from malice in law. Similarly, it submitted that Section 2 of the Act, whereby Section 66 of the Elections Act 2017, is sought to be amended is ultra vires the Constitution. “The relevant provisions of the Constitution including Articles 17, 51 and 106, stand duly interpreted by the Supreme Court of Pakistan through its judgment dated July 12, 2024,” the petitioner contended
The PTI submitted that in any case the provisions of Section 2 of the Act cannot be given retrospective effect, adding that the provisions of Section 2 of the Act have no applicability as regards the general election for the National Assembly and the provincial assemblies held on 08.02.2024 and the subsequent election for the reserved seats for women and non-Muslims in the National Assembly and the four provincial assemblies.
The PTI recalled that the Supreme Court through its July 12 judgment has taken into account the gross violations of Article 17 and the fundamental constitutional right of the people of Pakistan to participate in the democratic process by voting for political parties of their choice and for candidates contesting under the symbol of the political party of which they are members and candidates. It further submitted that the court has noted that the Feb 8 general election was marred by a series of decisions and actions that were all intended to prevent the PTI and its candidates from contesting the general election as a political party and as PTI candidates. “The Election Commission of Pakistan through order dated 22.12.2023 declared the then last conducted intra-party election of the PTI to be of no legal effect,” the petition submitted.
Moreover, the PTI contended that Section 2 of the Act is a facile attempt to deny to the people of Pakistan their constitutional rights protected by the Constitution and have been recognised by the Supreme Court through its judgment. “Consequently, Section 2 of the impugned Act is a nullity in the eye of the law and of no legal effect whatsoever,” it contended, adding that Section 3 of the Act seeks to add restrictions not contained in the Constitution with respect to submission of lists of candidates for reserved seats in terms of Articles 51 and 106.
It submitted that the aforesaid constitutional provisions contain a fundamental constitutional principle with respect to the composition of the National Assembly and the four provincial assemblies. It further submitted that the fundamental democratic principle which is the bedrock of the entire constitutional scheme would stand violated by the allowance to any political party of reserved seats for women or non-Muslims in excess of the general seats won by such political party. Articles 51 and 106 of the Constitution encapsulate and assert this fundamental democratic principle.
In the peculiar facts and circumstances of Feb 8 elections, the PTI contended, no restriction can be placed with retrospective effect, as purported by Section 3 of the Act, to prevent the submission of lists of candidates for reserved seats as directed by the Supreme Court in its July 12 judgment. “The said judgment has correctly interpreted and applied the substantive right of the people of Pakistan contained in Articles 51 and 106 of the Constitution read with Article 17,” it contended.
The PTI further submitted that the Supreme Court recognised the returned candidates of the PTI, who were wrongly declared to be independent candidates by the ECP, as in fact and in law are members of the PTI, and the time period provided by the Supreme Court for the submission of lists for reserved seats is entirely in accordance with the provisions of Articles 51 and 106 of the Constitution. Similarly, it submitted that the recognition of PTI by the apex court as a political party eligible for, and entitled to, its proportionate share in the quota for reserved seats and for its nominated and eligible candidates to be elected on the basis of lists filed by the PTI in accordance with the July 12 judgment cannot be overridden by the Section 3 of the Act that has purported to amend Section 104 of the Elections Act 2017. “Section 4 of the impugned act is ultra vires the Constitution, in particular, Articles 17, 51 and 106,” the PTI contended, adding that Section 4 of the Act may not be given retrospective effect.
It submitted that the so-called bar contained in the newly added Section 104A to the Election Act 2017 by Section 4 is not applicable to the facts and circumstances of Feb 8 elections. The PTI contended that a returned candidate who is wrongly declared to be an independent candidate by the ECP and thereby compelled to join a political party other than the party whose candidate he in fact was at the time of the election, and who had obtained the votes of the said political party, cannot be prevented from declaring his affiliation to the political party whose candidate he actually was. “Any bar on such declaration, and its acceptance, is a subversion of the constitutional rights of the people of Pakistan and of the democratic process envisaged by the Constitution,” the PTI chairman submitted.