SC rebukes ‘misconceived’ ECP clarification request, orders immediate execution of reserved seats verdict – Pakistan

The Supreme Court on Saturday rebuked the “misconceived” request by the Election Commission of Pakistan (ECP) to seek clarification from the top court on its verdict in the reserved seats case and ordered the immediate implementation of its original directions.

On July 12, a 13-judge full bench of the apex court had declared that the opposition PTI was eligible to receive reserved seats for women and non-Muslims in the national and provincial assemblies, dealing a major setback to Prime Minister Shehbaz Sharif’s ruling coalition and potentially making the PTI single largest party in both houses of Parliament.

The Supreme Court had also declared the PTI a parliamentary party. The ECP had subsequently finally decided to implement the Supreme Court decision. Instructions were issued to the ECP’s legal team to identify obstacles in the implementation of the judgement so that further guidance could be sought from the top court. The ECP had raised concerns about who in the PTI should be contacted for verification, given the party’s lack of structure and unrecognised intra-party elections, suggesting that the commission might need to seek further directions from the court.

A written order from the apex court issued today on the ECP’s request seeking guidance on certain legal and factual issues said that considering all evidence placed before the court left “little doubt that the clarification sought by the commission … is nothing more than a contrived device and the adoption of dilatory tactics, adopted to delay, defeat and obstruct implementation of the decision of the court. This cannot be countenanced. Even on the application of elementary principles of law, the application filed by the commission is misconceived”.

The order said the PTI had attached many notices to it by the ECP which identified Barrister Gohar Ali Khan as the party chairman and there were PTI documents as well identifying him as the chairman.

Thus, the court said: “Having itself recognised Barrister Gohar Ali Khan as the chairman of PTI, the commission cannot now turn around and purport to seek guidance from the court with regard to how the certifications are to be dealt with. The commission cannot approbate and reprobate, taking whatever [shifting] stance as it desires and as may seem to suit its immediate purposes for the moment.

“Furthermore, the commission, even if one were to consider the application in the most sympathetic light, has apparently forgotten the well-known de facto doctrine or rule, in terms of which the acts of a person who holds an office are protected even if there may be [and no such conclusion is reached here in relation to the PTI] any issue with the position de jure. It sufficed and the commission was duty-bound in terms of the Constitution to keep in mind that the admitted position [as stated before the court during the hearing of the appeals] is that the PTI was, and is, an enlisted political party.”

The order said that dissenting judges had also recognised Barrister Gohar’s validity as chairman, adding that this sufficed for the purposes of acting on the court’s reserved seats verdict.

“It would be completely illogical to assume that a political party, a juristic person, is fully functional yet there are no natural persons who are either de facto or de jure performing its functions or running its affairs. Saying … that a political party is an enlisted political party, fully functional for the purposes of its formation, yet there is no one that can perform its functions and run its affairs, amounts to blowing hot and cold in the same breath or, as noted, approbating and reprobating one and the same fact.

“There could have been no conceivable doubt that the certifications referred to above were correct and valid in terms of the short order and the continued denial and refusal of the commission to accept the same, as and when filed, is constitutionally and legally incorrect and may expose the commission to such further or other action as may be warranted in terms of the Constitution and the law,” the order warned.

On the issue of the reserved candidates themselves, the order noted that the court had “categorically declared” in its verdict that on filing the requisite statement and its confirmation by the political party concerned, the seat secured by such a candidate would immediately be deemed to be a seat secured by that political party.

“Therefore, upon submission of the declarations and certifications referred to above, the position of the returned candidates (now respectively MNAs and MPAs) immediately and ipso facto stood determined and fixed as a matter of law as on those dates and no subsequent act can alter what became, on the respective dates, past and closed transactions.

“As per the position so determined, the said returned candidates were and are the returned candidates of PTI and thus members of the parliamentary party of PTI in the National Assembly and provincial assemblies concerned, for all constitutional and legal purposes.

“The attempt by the commission to confuse and cloud what is otherwise absolutely clear as a matter of the Constitution and the law must therefore be strongly deprecated. The list required to be issued by the commission … is nothing more than a ministerial act, for the information and convenience of all concerned, and has no substantive effect. Nonetheless, the continued failure of, and refusal by, the commission to perform this legally binding obligation may, as noted, have consequences. This obligation must be discharged forthwith,” the order stated.

Last month, Supreme Court senior puisne judge Justice Mansoor Ali Shah had stressed that there could be no possibility of the top court’s orders going unimplemented as such a scenario would amount to a constitutional violation and the executive had no choice but to comply with court orders.

The remarks had come after he similarly emphasised that the apex court’s orders were not merely recommendations or advisories, but legal mandates which must be followed. Legal observers attached great significance to these observations, particularly against the backdrop of recent legislation by parliament aimed at circumventing the Supreme Court’s July 12 verdict in the reserved seats case.

The government had bulldozed a controversial election law, apparently aimed at circumventing the Supreme Court verdict on reserved seats and sapping the expected strength of PTI in Parliament, through both houses of parliament.

The law had passed despite fierce protest by PTI members, who later approached the top court against the move.

Changes to the elections law are set to become the latest legal battleground between the government, the opposition and the judiciary.

Legal experts say the ramifications of this wrangling could even extend to and redefine the scheme of separation of powers between the legislature, executive and judiciary, which in itself is quite a thorny issue.

The reserved seats issue