The highest court has found that ECP’s “conduct demonstrates that it failed to fulfil its constitutional role in the 2024 General Elections,” says Barrister Rida Hosain.
Legal experts on Monday praised the Supreme Court’s detailed judgement in the reserved seats case, with one describing it as a “chargesheet” against the Election Commission of Pakistan (ECP) and another urging the electoral body to “mend its ways”.
The 70-page verdict, penned by Justice Syed Mansoor Ali Shah, elaborated upon its July 12 order, in which it declared the opposition Pakistan Tehreek-i-Insaf (PTI) eligible for reserved seats in the national and provincial legislatures. It also said that the ECP had failed to perform its role as a “guarantor institution” of democratic processes in the Feb 8 elections.
The verdict also expressed “some doubts” about whether the electoral watchdog had the “power to reject the certificate of intra-party elections submitted by a political party under Section 209, and whether the Commission exercised its discretion under Section 215(5) justly, fairly and reasonably in PTI’s case”, emphasising that the “fundamental right of citizens to vote for the political party of their choice was at stake”.
The SC also observed that the ECP’s numerous “unlawful acts and omissions” had “caused confusion and prejudice to PTI, its candidates and the electorate who voted for PTI”.
Here’s what legal eagles had to say about today’s detailed judgement:
‘Broader concerns about the ECP’s impartiality’
Barrister Rida Hosain characterises the court’s majority judgment as a “charge sheet” against the ECP, condemning its conduct during the February 8 elections. According to the judgement, the ECP’s actions failed to meet its constitutional obligations, casting serious doubts over the fairness of the entire electoral process.
“The highest court of the land has found that ECP’s conduct demonstrates that it failed to fulfill its constitutional role in the 2024 General Elections,” Hosain says. She emphasises that the judgement extends beyond issues related to reserved seats, raising broader concerns about the ECP’s impartiality. She says the electoral body had acted not as a neutral watchdog, but as an “adversary of the PTI”.
The lawyer further says that the court’s decision was based on “fundamental democratic principles” and the right of the people to a truly representative legislature. She says that the ECP’s errors unjustly deprived PTI of its chance to compete in the elections, and thus, the electorate could not be penalised for the commission’s failures.
“In granting PTI its rightful share of reserved seats, the majority has upheld the people’s mandate and ensured that the legislature represents the people’s voice,” she adds.
A key aspect of the ruling, as emphasised by Hosain, was the clarification that reserved seats must be allocated in proportion to the general seats won. This preserves the balance determined by voters, preventing post-election manipulation of the electoral mandate.
“A post-election exercise cannot disturb the electoral mandate,” she says, stressing the significance of respecting the voters’ will.
Hosain states that the court’s verdict was handed down on July 12, yet it remains unimplemented, with over two months having passed since the ruling. She says that some had tied the implementation to the release of the court’s detailed reasoning, a position she describes as “wrong, unconstitutional, and [one that] set a dangerous precedent”.
She adds: “In any case, there can be no more excuses. The majority of the Full Bench have spoken, and they have given their reasons. All institutions must implement this decision immediately.”
‘Debt of justice’
Lawyer Abdul Moiz Jaferii describes the judgement as “a well-reasoned articulation” of why the short order was issued, granting all reserved seats to the PTI. According to Jaferii, the court found that the actions of the election commission and the returning officers who deprived the PTI of its status as a political party, were illegal. He highlights that because these were public functionaries, they are “owed a debt of justice” and must be put right as far as possible.
Jaferii notes that on the issue of the ECP and the returning officers’ failings, “11 judges, including the Chief Justice of Pakistan, were agreed in their short orders”. However, he notes that “eight judges felt that once this failure on the part of the state and ECP was determined, the debt of justice owed to the PTI trumped any technical handicaps that could have obstructed justice”.
The court, he observes, was “not impressed by the technical limitations of civil procedure being applied to electoral issues,” which it viewed as directly impacting the people’s fundamental rights to association and expression. He also asserts that the court referenced a previous decision from January 13, led by the Chief Justice, noting that if that ruling on PTI’s electoral symbol had been clearer regarding the party’s status, “none of these illegalities could have come about”.
‘High time the ECP mends its ways’
Barrister Asad Rahim Khan says that “it’s time for implementation”. He notes that the detailed judgement has “crossed all T’s and dotted all I’s,” addressing key issues such as the confusion stemming from the bat symbol verdict, the “mistakes within mistakes” of the ECP, and the matter of proportional representation in parliament.
He finds it “heartening to see the court prevent what it calls ‘democratic backsliding’,” and believes the decision is “constitutionally sound and legally convincing”. However, he offers one caveat, pointing to the court’s view that the terms “secured” and “won” are interchangeable — an interpretation he finds debatable.
Calling for action, Rahim states that “it’s high time the ECP mends its ways”, having previously “gleefully attempted to disenfranchise millions of voters”. He stresses that the ECP must now fulfil its legal obligations and carry out the court’s directives, which are binding upon it.
‘Judiciary must preserve the people’s will’
Lawyer Yasser Hamdani underscores the significance of the Supreme Court’s detailed judgement stating: “Regardless of the politics of the matter, the detailed verdict goes a long way in establishing some basic ideas about our constitutional democracy and the role of ECP within it.” He notes that the judgment “shows how fundamental the reserved seats are for the due representation of women and minorities in Pakistan’s political system”.
Hamdani also points out the SC’s characterisation of the ECP, saying it is “the guarantor of the electoral system’s fairness beyond being a mere administrator.”
He underscores the judgement’s reprimand of the ECP for contesting the matter as a primary contesting party which he believes “delineates the proper role of the commission both in the democratic process and before the court”.
Furthermore, he regards the judgment as significant for introducing the concept of electoral justice and insists that “the judiciary must preserve the people’s will”.
He states: “Regardless of what one feels about the dramatis personae of the case, it is an important judgement that underscores the importance of the electoral process to Pakistan’s constitutional democracy.”
He concludes by calling it an “extremely reasoned pronouncement” that will “hopefully go a long way in restoring the trust of the people in democracy”, but notes that “with the Election Act amendments of last month, this judgment has become dated,” suggesting that the controversy is far from over.
