PLJ 2024 SC 724
[Appellate Jurisdiction]
Present: Qazi Faez Isa, CJ, Syed Mansoor Ali Shah, Munib
Akhtar, Yahya Afridi, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali
Mazhar, Mrs. Ayesha A. Malik, Athar Minallah,
Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan, Naeem Akhtar Afghan,
JJ.
SUNNI ITTEHAD COUNCIL and another--Appellants
versus
ELECTION COMMISSION OF PAKISTAN and
others--Respondents
C.As. Nos.
333 and 334 and C. Misc. Appln. No. 2920 of 2024 and
C. Misc. Appln. No. 5913, C.Ps. No. 1612 to 1617 and C.M.A. No. 3554 of
2024 in CP NIL/2024, decided on 23.9. 2024.
Election Act, 2017 (XXXIII of 2017)--
----Ss. 66/67/205/210 &
215(5)--Election Rules, 2017, R. 94--Constitution of Pakistan, 1973, Art.
17(2)/51--Announcement of election programme--Commission also decided
then-pending matter of intra-party elections of political party--“PTI” had not
conducted its intra-party elections in accordance with its constitution and
election laws-- Commission declined to recognize PTI’s intra-party elections
and declared PTI ineligible to obtain its election symbol--PTI candidates were
thus not allotted party symbol of PTI but instead were allotted various
different symbols--One of PTI candidates, challenged that action before
Commission--Commission rejected his challenge and declared him an independent
candidate--After publication of Section-98 Notification, a substantial number
of independent returned candidates joined a political party, SIC to obtain
share of proportional representation in seats reserved for women and
non-Muslims in NA and PA--Commission rejected SIC’s applications and decided
that reserved seats for women and non-Muslims, Seats were allocated to other
political parties--SIC challenged Commission’s order before Peshawar High Court
in writ jurisdiction--Peshawar High Court dismissed SIC’s challenge and upheld
Commission’s order--PTI filed an application seeking its impleadment in these
appeals--PTI issued party tickets to its candidates--PTI entered into an
arrangement with another political party, PTI-Nazriati, under which party
tickets were issued to PTI candidates--Chairman of PTI-Nazriati appeared on
national television channels and disavowed tickets issued--Commission also
issued an order, directing RO,s not to accept a political party’s tickets--Most
of PTI candidates withdrew tickets of PTI-Nazriati and RO rejected PTI’s
tickets and, by treating PTI candidates as independent candidates, allotted
them different election symbols--These candidates were notified as independent
returned candidates--Commission’s order and Returning Officers’ act of
mentioning PTI candidates as independent candidates in Form-33 were both
unconstitutional and unlawful, and they were hereby declared as such--Commission’s
reliance on cited observation of this Court made in paragraph 11 of its order
dated 13 January 2024 was misconceived and misplaced, as that observation
pertained to Section 215(5) and not to Sections 66 and 67 of Elections Act--PTI’s
nominated candidates were wrongly shown independent candidates in list of
contesting candidates by RO,s were also
wrongly notified as independent returned candidates in Notification by
Commission--Acts performed by Chairman PTI on behalf of PTI before 13 January
2024, when this Court restored Commission’s order declining to accept
intra-party elections, were fully valid and effective--Commission sought
clarification of our short order in order to give effect to it--There was no
legal requirement, nor did this Court necessary, to hear parties before
clarifying our own order on point regarding which Commission was unclear--Since
proviso did not except anything from main provisions of paragraph (d) of
Article 51(6) by limiting or qualifying them but rather adds to them, it is not
a true proviso but a substantive provision that enacts a matter which would not
otherwise had been covered by main provisions of paragraph--The independent
returned candidate or candidates may duly join, or be allowed to join, only
such a political party that has won one or more general seats through its
nominated candidates in NA from Province concerned--A member of a House elected
as an independent candidate can become a member of a Parliamentary Party by
joining only such a political party that constitutes a Parliamentary Party, not
a political party that does not constitute a Parliamentary Party.
Notwithstanding joining a political party of latter type, a member of a House
shall not become a member of a Parliamentary Party and shall remain an
independent member of a House for purpose of all parliamentary
proceedings--Article 51(6)(e) of Constitution refers to political parties that
have contested for and won one or more general seats in NA from whole country, i.e.,
from any of Provinces or Federal Capital--SIC had not contested for and won one
or more general seats in NA from Provinces concerned or from anywhere in country,
it was not such a political party to which any of independent returned
candidates could join--The voice of electorate should be truly reflected in
composition of legislative bodies--against constitutional objective of ensuring
adequate representation of women and minorities (non-Muslims) in such
bodies--The cabinet form of government is essentially a government of political
party in majority, or of political parties in case of a coalition
government--The political party or parties that form Government are connecting
link between Government and people, and between Parliament and people--Independent
returned candidates could only be counted towards proportional representation
if they act in accordance with proviso and join a political party, in which
case their seats should be counted as seats of political parties to which they
joined for purpose of determining proportional representation of political
parties--Unlawful acts and omissions of RO,s and Commission, which had caused
confusion and prejudice to PTI, its candidates and electorate who voted for
PTI, were numerous--PTI, its candidates and electorate should not be made to
suffer or be prejudiced by unlawful acts or omissions of public functionaries,
namely RO’s and Commission--Given that they had been deprived of their
constitutional right to proportional representation in reserved seats due to
those unlawful acts and omissions, they were entitled, by virtue of an
obligation of justice to be restored to that right and placed, insofar as
possible, in same position they would had been if such unlawful acts and
omissions had not occurred--While exercising such general powers, Commission or
Court must, however, make an endeavour to adhere to spirit and substance of
provisions of law that, although not covering matter or issue, were closely
related to it, so that legislative intent may be given effect to maximum extent
possible-- Commission had failed to fulfill that role in General Elections of
2024--That function of Commission, ‘to organize and conduct election’, not
judicial or quasi-judicial--Commission also performed some quasi-judicial
functions--Several political parties made counterclaims regarding their right
to disputed reserved seats, and Commission decided those counterclaims as an
adjudicatory body-- The function performed by Commission in present case was,
therefore, quasi-judicial--To protect such acts and proceedings of NA and PA
concerned, which could had been successfully conducted even if members elected
on disputed reserved seats had not participated, notifications of Commission
declaring such members as returned candidates on disputed reserved seats were
quashed with effect from 6 May 2024, date on which this Court suspended
impugned order of Commission--The procedural formality of first accepting PTI’s
application and then granting it relief did not carry much weight where Court’s
concern was protection of right of vote of people guaranteed under Articles 17(2)
and 19 of Constitution, more than right of any political party--whether it be
SIC or PTI or any other party--A contesting candidate or a returned candidate
to seats reserved for women or non-Muslims was not a necessary party to a
dispute where matter to be decided was which political party and in what
proportion is entitled to reserved seats--The persons nominated by a political
party for reserved seats or elected to such seats do not have a personal right to
such seats--It is right of electorate guaranteed under Articles 17(2) and 19 of
Constitution, exercisable through political parties, to have proportional representation
in reserved seats, not of person nominated for or elected to such seats--These
were detailed reasons for short order.
[Pp.
756, 757, 758, 774, 775, 776, 777, 780, 787, 788, 789, 790, 791,
792, 797, 798, 799, 805, 807 & 808] P, Q, R, S, T, U, V, W, X, 3C, 3E, 3F, 3G,
3O, 3Q, 3T, 3U, 3V, 3W, 3Y, 4D, 4E, 4F, 4K, 4L,
4M, 4N & 4O
Sreenivasan v. Election Tribunal [1955] 11 E.L.R.
278; Rhondda Urban District Council v. Taff Vale Railway Company [1909] AC 253;
Jennings vs Kelly [1940] AC 206; The Constitution, Article 34: Steps shall be
taken to ensure full participation of women in all spheres of national life.
Article 36: The State shall safeguard legitimate rights and interests of
minorities, including their due representation in Federal and Provincial
services; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Nadia
Urbinati, Representative Democracy: Principles and Genealogy (Chicago, III:
University of Chicago Press, 2010) ref.
Seyyed Hossein Nasr, The Sacred Foundations of
Justice in Islam; Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382; Manager, J&K
State Property v. Khuda Yar PLD 1975 SC 678; Sherin v. Fazal Muhammad 1995 SCMR
584; Ladha Khan v. Bhiranwan 2001 SCMR 533; Rauf Kadri v. SBP PLD 2002 SC 1111;
Jawad Mir v. Haroon Mirza PLD 2007 SC 472 (5MB); Zulfiqar v. Shahdat Khan PLD
2007 SC 582; Razia Jafar v. Govt. of Bal ochistan 2007 SCMR 1256; Yasin v.
Govt. of Punjab 2007 SCMR 1769; Saddaqat Khan v. Collector Land Acquisition PLD
2010 SC 878 (6MB); Ijaz Iqbal v. Faisalabad Chamber of Commerce PLD 1983 Lah 1
and Ahmad Latif Qureshi v. Controller of Examination PLD 1994 Lah 3; Zulfiqar
Bhatti v. ECP 2024 SCMR 997; Dossani Travels v. Travels Shop PLD 2014 SC 1:
Saddaqat Khan v. Collector Land Acquisition PLD 2010 SC 878; Dossani Travels v.
Travels Shop PLD 2014 SC 1; Raja Amer v. Federation of Pakistan 2024 SCP 91;
Imtiaz Ahmad v. Ghulam Ali PLD
1963 SC 382; Martin Dow Marker Ltd. v. Asadullah Khan 2020 SCMR 2147 (5MB) and
State v. Alif Rehman 2021 SCMR 503 (Many previous cases are cited in these two
cases); ]
Election Act, 2017 (XXXIII of
2017)--
----Ss. 66/67/ 205/ 210 &
215(5)--Short order dated 12 July 2024, which is reproduced here for completion
of record:
1. The
impugned judgment dated 25.03.2024 of learned Full Bench of High Court is set
aside to extent it is or may be inconsistent with this Order or detailed
reasons.
2. The
order of Election Commission of Pakistan (“Commission”) dated 01.03.2024
(“Impugned Order”) is declared to be ultra vires Constitution, without
lawful authority and of no legal effect.
3. The
notifications (of various dates) whereby persons respectively mentioned therein
(being persons identified in Commission’s Notification No. F.5(1)/2024-Cord.
dated 13.05.2024) have been declared to be returned candidates for reserved
seats for women and minorities in National and Provincial Assemblies are
declared to be ultra vires Constitution, without lawful authority and of
no legal effect, and are quashed from 06.05.2024 onwards, being date an interim
order was made by Court in CPLA Nos. 1328-9 of 2024, leave petitions out of
which instant appeals arise.
4. It is declared
that lack or denial of an election symbol does not in any manner affect constitutional
and legal rights of a political party to participate in an election (whether
general or bye) and to field candidates and Commission is under a
constitutional duty to act, and construe and apply all statutory provisions,
accordingly.
5. It is declared
that for purposes, and within meaning, of paragraphs (d) and (e) of clause (6)
of Article 51 (“Article 51 Provisions”) and paragraph (c) of clause (3) of
Article 106 (“Article 106 Provisions”) of Constitution, Pakistan Tehreek e
Insaf (“PTI”) was and is a political party, which secured or won (the two terms
being interchangeable) general seats in National and Provincial Assemblies in General
Elections of 2024 as herein after provided.
6. During course of hearing
of instant appeals, on 27.06.2024, counsel for Commission placed before Court a
list (“the List”) of 80 returned candidates for National Assembly (now MNAs),
setting out in tabular form particulars relating to their election. Learned
counsel made a categorical statement that Commission stood by data so provided
to Court. In particular, List contained three columns marked as follows: (i)
“Statement (on nomination form) given in declaration and oath by person
nominated (i.e., ‘I belong to’)”; (ii) “Certificate of party affiliation
under Section 66 of Elections Act, 2017”; and (iii) “Statutory
Declaration/affidavit accompanying section 66 certificate”.
7. In peculiar facts
and circumstances of General Election of 2024, it is declared that out of aforesaid
80 returned candidates (now MNAs) those (being 39 in all and whose particulars
are set out in Annex A to this Order) in respect of whom Commission has shown
“PTI” in any one of aforesaid columns in List, were and are returned candidates
whose seats were and have been secured by PTI within meaning, and for purposes
of, para 5 above in relation to Article 51 Provisions.
8. In peculiar facts and circumstances of General
Election of 2024, it is further ordered that any of remaining 41 returned
candidates out of aforesaid 80 (whose particulars are set out in Annex B to
this Order) may, within 15 working days of this Order file a statement duly
signed and notarized stating that he or she contested General Election as a
candidate of political party specified therein. If any such statement(s) is/are
filed, Commission shall forthwith but in any case within 7 days thereafter give
notice to political party concerned to file, within 15 working days, a
confirmation that candidate contested General Election as its candidate. A
political party may in any case, at any time after filing of a statement as
aforesaid, of its own motion file its confirmation. If such a statement is
filed, and is confirmed by political party concerned, then seat secured by such
candidate shall be forthwith deemed to be a seat secured by that political
party for purposes of para 5 above in relation to Article 51 Provisions. The
Commission shall also forthwith issue, and post on its website, a list of retuned
candidates (now MNAs) and seats to which this para applies within 7 days after last
date on which a political party may file its confirmation and shall
simultaneously file a compliance report in Court.
9. For purposes of
para 5 of this Order in relation to Article 51 Provisions, number of general
seats secured by PTI shall be total of seats declared in terms of para 7 and
those, if any, to which para 8 applies. The PTI shall be entitled to reserved
seats for women and minorities in National Assembly accordingly. PTI shall,
within 15 working days of this Order file its lists of candidates for said
reserved seats and provisions of Elections Act, 2017 (“Act”) (including in
particular s. 104) and Elections Rules, 2017 (“Rules”) shall be applied to such
lists in such manner as gives effect to this Order in full measure. The
Commission shall, out of reserved seats for women and minorities in National
Assembly to which para 3 of this Order applies, notify as elected in terms of Article
51 Provisions, that number of candidates from lists filed (or, as case may be,
to be filed) by PTI as is proportionate to general seats secured by it in terms
of paras 7 and 8 of this Order.
10. The foregoing paras shall apply mutatis
mutandis for purposes of Article 106 Provisions in relation to PTI (as set out
in para 5 herein above) for reserved seats for women and minorities in Khyber
Pakhtunkwa, Punjab and Sindh Provincial Assemblies to which para 3 of this
Order applies. In case Commission or PTI need any clarification or order so as
to give effect to this para in full measure, it shall forthwith apply to Court
by making an appropriate application, which shall be put up before Judges
constituting majority in chambers for such orders and directions as may be
deemed appropriate.
[Pp.
808, 809, 810 & 811] 4P
Political Office--
----The most important political office is that of private
citizen’ underscores crucial role of people, whose right to vote is lifeblood
of democratic governance. [P.
749] A
Justice Louis Brandeis, a U.S. Supreme Court Justice from 1916
to 1939, famously said: “The most important political office is that of private
citizen.” This statement emphasizes crucial role individuals
play in a democracy and highlights that strength of democratic governance
depends on active participation and vigilance of
its citizens ref.
Democracy--
----Democracy thrives on belief that authority inherently resides in people,
a principle enshrined in Constitution of every democratic nation, including
ours. [P.
749] B
Representative Democracy--
----Political parties play a crucial role in representative
democracies, acting as intermediaries between state and its citizens--They are
uniquely positioned to shape and structure electoral choices, organize public
opinion, and integrate diverse interests into coherent platforms, thereby
making electoral decisions meaningful and ensuring proper functioning of
democracy. [P.
750] C
Tarunabh Khaitan, Political
Parties in Constitutional Theory, Current Legal Problems, Vol. 73 (2020), pp. 89-125
ref.
Constitutional Particracy--
----Central role of political parties in constitutional
process is referred to as “constitutional particracy”, meaning a system in
which political parties serve as primary foundation of governance.
[P.
750] D
Aradhya
Sethia, Constutitional Particracy: Political Parties and Indian Constitution, (2024)
ref.
Democracy--
----For
democracy to endure, political parties must be
supported and strengthened, not eliminated--A democracy without political
parties is unlikely to sustain itself for long. [P.
750] E
Judicial
intervention--
----When
Election Commission errs or makes significant mistakes impacting electoral
process, judicial intervention becomes necessary to rectify them and ensure
electoral justice. [P. 751] F
Complete Justice--
----The role of Supreme Court of Pakistan in overseeing electoral
integrity is crucial for sustaining public trust in democratic process, and Court’s
power to do “complete justice” is a critical tool in constitutional arsenal of
Court, enabling it to prevent democratic backsliding. [P. 751] G
Tom Ginsburg, ‘Democracy
Backsliding and Rule of Law’ 44
Ohio University Law Review 351 (2018) ref.
Vitality of Constitution’s Text--
----When static interpretation fails to preserve vitality of Constitution’s
text and principles, judges have typically rejected it in favor of
constitutional fidelity. [P.
751] H
Constitutional Fidelity--
----Constitutional fidelity and
legitimacy both are framed in a means-end relationship; legitimacy as end and
constitutional fidelity as a means to that end. [P.
751] I
Frank I. Michelman,
Fidelity and Legitimacy, Journal of
ACS Issue Groups, American Constitution Society for Law and Policy (Vol. 1, No.
2, 2007) ref.
Constitution--
----Constitutions are not ephemeral
enactments, designed to meet passing situations but are ‘designed to approach
immortality as nearly as human institutions can approach it. [P. 751] J
Weems v. United States, 217 U.S. 349 (1910) ref.
Pleadings--
----Article 185 of Constitution--In
exercising its appellate jurisdiction under Article 185 of Constitution, this
Court cannot go beyond pleadings--It results from a misunderstanding of
treating election disputes as mere civil disputes between two private parties,
similar to other civil disputes. [P.
752] K
Mortin
vs Galway [1875] 3 Q.M & H.19; Aldrige vs Hurst
[1876] L.R. I C.P. 410 ref.
Civil Suit and an Election
Petition--
----Difference in nature of proceedings of a civil suit and an
election petition and eloquently enunciated legal position--An election dispute
is fundamentally different from other civil disputes, as it is not solely a
dispute between two contesting parties but a proceeding where constituency
itself is principal interested party--These cases involve not just rights of contesting
candidates or political parties but also rights of voters, constituencies and public--Election
cases aim to fill public offices by properly qualified and duly elected
candidates and to maintain purity of elections, ensuring that no one takes
charge of a public office through flagrant breaches of election laws or corrupt
practices--The proceedings in election cases thus have unique characteristics
because they serve interests of entire constituency, differentiating them from
ordinary civil proceedings. [Pp. 752, 754
& 755] L & M
Sreenivasan vs Election Tribunal [1955] 11 E.L.R. 278.;
Inamati Basappa v. Desai Ayyappa AIR 1958 SC 698; Mohinder Singh v. Chief
Election Commissioner AIR 1978 SC 851; Dilshad Khan v. Arshad Ali 1999 MLD 2874
(DB); Irshad Hussain v. Ashraf Nagra 2003 YLR 812 (DB) ref.
Election Cases
----Since election cases are a species of collective or public
interest litigation, proceedings therein are inquisitorial in
nature. [P. 755] N
Free and Fair Elections--
----Judicial intervention--Any judicial intervention is to
ensure justice for constituency and to safeguard integrity of electoral
system--The process of free and fair elections requires vigilant judicial
monitoring to check influence of any capricious or partisan election or
executive authority. [P. 755] O
Courts responsibility--
----Courts have a critical responsibility to address lawless
behaviour in electoral process, as their inaction or delay could undermine legitimacy
and credibility of whole election. [P. 755]
P
Election Disputes--
----Duty of court--In handling election disputes, primary
obligation of Courts is to protect electorate’s right to fair representation,
ensuring that only candidates who have legitimately won support of electorate
through fair processes assume office--Courts must rise above political biases
and interests, focusing solely on legal and evidential matters to safeguard electorate’s
interests--Their approach to election disputes reflects judiciary’s overarching
responsibility to uphold integrity of electoral process--As highest Court in judicial
hierarchy, this Court bears a profound duty to prioritize and protect rights of
electorate, ensuring that their voice and representation in elected bodies are
not compromised by procedural failings or errors in electoral process. [P. 755] Q
Constitution of Pakistan, 1973--
----Article 17(2)--Scope of fundamental right--Guaranteed by
Article 17(2) of Constitution--Any reasonable restrictions can be imposed on
this right by law only in interest of sovereignty or integrity of Pakistan--Although
all Courts and tribunals are mandated to enforce right guaranteed by this
Article, Supreme Court of Pakistan is ultimate guardian of it--We decided to
make a broader and comprehensive judicial inquiry into all relevant facts and
law points concerning enforcement of fundamental rights of both voters and political
parties. [Pp. 760 & 761] Y
Fundamental Right--
----Fundamental rights guaranteed
by Constitution, an organic instrument, are not capable of precise or permanent
definition delineating their meaning and scope for all times to come--Courts
construe fundamental rights guaranteed by Constitution with a progressive,
liberal and dynamic approach--Courts expound fundamental rights to give them
“life and substance” that are true to reality of changing times. [P. 761] Z, 2A
Nawaz Sharif
v. President of Pakistan PLD 1993 SC 473 ref.
Griswold v. Connecticut (1965)
381 US 479 per Justice Douglas ref.
Constitution of Pakistan, 1973--
----Art. 17(2)--Principles of
Interpreting Fundamental Rights--Supreme Court has expounded in
several cases scope of “right to form or be a member of a political party”
guaranteed by Article 17(2)--and held that it includes right to function and
operate as a political party--Right to participate in and contest an election
as a political party--Right to form Government and complete prescribed tenure
if members of political party constitute requisite majority--Right to contest
an election in his individual capacity or as a member of a political party--Right
to be governed by chosen representatives and right to vote. [P. 761] 2B
Benazir Bhutto v. Federation of Pakistan PLD 1988
SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 and Nawaz
Sharif v. President of Pakistan PLD 1993 SC 473; Nawaz Sharif v. President of
Pakistan PLD 1993 SC 473; Javed Jabbar v. Federation of Pakistan PLD 2003 SC
955; Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774 ref.
Constitution of Pakistan, 1973--
----Arts. 17(2) & 19--Fundamental Right--Bouquet of
political fundamental rights ensures a functional and a workable democracy and
a representative government--It is underlined that ‘representation in fact is
democracy’--Right guaranteed by Article 17(2) is essential for actualizing constitutional
objective of establishing an order wherein State exercises its powers and
authority through chosen representatives of people--Right to vote and freedom
of expression guaranteed under Article 19 of constitution, 1973--The right to
freedom of speech and expression is considered “preservative of all rights”--The
right to form political parties, right to contest elections and right to vote
are therefore pivotal extensions of representativeness and freedom of
expression, essential for cultivating a socially just environment--These
Articles emphasize importance of electoral integrity and political justice,
ensuring that every citizen’s voice and choice are heard and represented in political
process.
[Pp. 761, 762 & 763] 2C, 2D, 2E, 2F & 2G
Province of Sindh v. M.Q.M. PLD 2014 SC 531; Yick Wo v.
Hopkins, 118 U.S. 356 (1886) ref.
Elections Act, 2017 (XXXIII of 2017)--
----Ss.
200 to 210--Obligation--Section 202 makes it obligatory for Commission to
enlist a political party if application for its enlistment is accompanied by a
copy of constitution of political party, certificate and information required
to be submitted under Sections 201 and 209, a copy of consolidated statement of
its accounts under Section 210, a list of at least two thousand members with
their signatures or thumb impressions along with copies of their National
Identity Cards, and deposit of two hundred thousand rupees in favour of Commission
in Government Treasury as enlistment fee. [P.
763] 2H
Elections Act, 2017 (XXXIII of 2017)--
----Ss. 208 & 209--Sections 208 and
209--Intra-party elections of political parties--The office-bearers of a
political party are to be elected periodically in accordance with constitution
of political party--Under Section 209, within seven days from completion of its
intra-party elections, a political party is to submit a certificate signed by
an office-bearer authorized by Party Head, to Commission to effect that elections
were held in accordance with constitution of political party--Under Section
208(5), where a political party fails to conduct intra-party elections as per given
time frame in its constitution despite a notice issued by Commission to do so,
then Commission can impose a fine.
[P.
764] 2I & 2J
Elections Act, 2017 (XXXIII of
2017)--
----S. 215(5)--Election symbol, S. 215(5)
of Elections Act provides that if a political party fails to comply with provisions
of Section 209 (regarding intra-party elections) or Section 210 (regarding
sources of party’s funds), Commission may, after affording it an opportunity of
being heard, declare it ineligible to obtain an election symbol for election to
Majlis-e-Shoora (Parliament), Provincial Assembly or a local government, and
shall not allocate an election symbol to such political party in subsequent
elections.
[Pp.
764 & 765] 2K
Elections Act, 2017 (XXXIII of
2017)--
----S. 215(5) of Elections Act, 2017--The
word “may” in Section 215(5) indicates discretion of Commission
in making declaration, which discretion, like all other discretionary powers
vested in public functionaries, is to be exercised justly, fairly and
reasonably, considering peculiar facts and circumstances of each case.
[P.
765] 2L
Construction of Statute--
----Principle
of strict construction of statutes providing penal consequence or curtailing
fundamental rights--It is a cardinal principle of construction of statutes that
any provision entailing penal consequence, whether of criminal law or of civil
law, must be construed strictly--This principle of strict construction of penal
statutes is also called principle against doubtful penalization--It stresses
that a person should not be penalised except under clear law and if, in
construing relevant provisions, there appears any reasonable doubt or
ambiguity, it should be resolved in favour of person who would be liable to penalty--Any
reasonable doubt or ambiguity is to be resolved in favour of person who would
be liable to penalty, and construction that avoids penalty is to be adopted.
[P.
765] 2M & 2P
Muhammad Ali v. State
Bank of Pakistan 1973 SCMR 140; F. B. Ali v. State PLD 1975 SC 506; M.B. Abbasi
v. State 2009 SCMR 808; Zahid Rehman v. State PLD 2015 SC 77; Tahir Naqash v.
State PLD 2022 SC 385; PIA Corporation v. Labour Court PLD 1978 SC 239; Federal
Land Commission v. Ghulam Qadir 1983 SCMR 867; Siddique Khan v. Abdul Shakur
PLD 1984 SC 289; UBL v. Yousuf Dhadhi 1988 SCMR 82; Wukala Mahaz v. Federation
of Pakistan PLD 1998 SC 1263; B.I.S.E. v. Rizwan Rashid 2005 SCMR 728; Tahir
Hussain v. Liaqat Ali 2014 SCMR 637 and State Bank of Pakistan v. S.E.C.P. PLD
2018 SC 52 ref. Maxwell on Interpretation of Statutes (12th ed.) pp.
238-240 and Bennion on Statutory Interpretation (7th ed.) pp. 715-717 ref.
Penal Consequence--
----Penal action--Penal actions can
only be taken on basis of express and clear provisions of law--Courts are not
to strain or stretch meaning of words to bring act or subject within ambit of
penal provisions; in other words. [P.
765] 2N
Penal Provisions, Interpretation
----Scope of
penal provisions is not to be extended through liberal construction--If a penal
provision is susceptible to two reasonable constructions, one that does not
extend penalty is to be adopted.
[P.
765] 2O
Constitutional and Statutory Construction--
----Another well-established principle of
constitutional and statutory construction is that while fundamental rights
guaranteed in Constitution are to be construed progressively and liberally,
provisions in Constitution or in any law that curtail fundamental rights are to
be construed restrictively and narrowly--That encroach on such rights of subject
are also subject to strict construction--They are to be construed, if possible,
to protect such rights, and if there is any ambiguity, construction that saves
right should be adopted--In a constitutional democracy, laws are solicitous of individual
rights and liberties of citizens and interfere with them as little as possible
in public interest--Laws that curtail individual rights and liberties,
particularly fundamental rights guaranteed in Constitution, are to be construed
strictly.
[P.
766] 2Q, 2R, 2S
Nawaz Sharif
v. President of Pakistan PLD 1993 SC 473; Justice Qazi Faez Isa v. President of
Pakistan 2022 SCP 140 per Maqbool Baqar, J., et al. and Hamza Rasheed v.
Election Appellate Tribunal 2024 SCP 66 per Syed Mansoor Ali Shah, J.; F. B.
Ali v. State PLD 1975 SC 506; Benazir Bhutto v. Federation of Pakistan PLD 1988
SC 416; Ghulam Mustafa Jatoi v. Returning Officer 1994 SCMR 1299; Wukala Mahaz
v. Federation of Pakistan PLD 1998 SC 1263 and Hamza Rasheed v. Election
Appellate Tribunal 2024 SCP 66 per Syed Mansoor Ali Shah, J. ref. Maxwell
on Interpretation of Statutes (12th ed.) pp. 251-252 and Bennion on Statutory
Interpretation, (7th ed.) pp. 718-719. (Although Maxwell states that statutes
that encroach on rights of subject are subject to strict construction in same
way as penal statutes, we do not go thus far. In our tentative view, which is
subject to detailed examination in an appropriate case, penalties can be
imposed only by express enactment, not by necessary implication, but civil
rights can be impaired not only by express enactment but also by necessary implication
ref. Tahir Naqash v. State PLD 2022 SC 385 ref.
Elections
Act, 2017 (XXXIII of 2017)--
----Ss.
209/210 & 215(5)--Constitution of Pakistan, 1973, Art. 17(2)--Scope of penalty--The
specified penalty of non-allocation of an election symbol curtails political
party’s fundamental right to function and operate as a political party--A right
implicit in right to form a political party guaranteed by Article 17(2) of Constitution--No
other constitutional or statutory right of political party can be denied on basis
of non-allocation of an election symbol under this provision--Scope of penalty
provided by Section 215(5) must remain confined to its express terms, ensuring
that no other constitutional or statutory right of political party is affected. [Pp. 766 & 767] 2T
Benazir Bhutto
v. Federation of Pakistan PLD 1988 SC 416; Benazir Bhutto v. Federation of
Pakistan PLD 1989 SC 66 and Nawaz Sharif v. President of Pakistan PLD 1993 SC 473
ref.
Election Rules, 2017--
----R. 94--Election Act, 2017, S.
239--Explanation to Rule 94 of Elections Rules 2017 is ultra vires Elections
Act and Constitution--Section 239 of Elections Act, which authorises Commission
to make rules for carrying out purposes of Act--Rule 94 provides procedure for calculation,
allocation and notification of share of proportional representation of
political parties in seats reserved for women and non-Muslims. [Pp. 768 & 769] 2U & 2V
Election Rules, 2017--
----R. 94--Political
party--“Political party” means a political party to which a symbol has been
allocated by Commission.
[Pp.
768 & 769] 2V
Rules--
----Primary purpose--Rules made under rule-making
authority conferred by an Act (“parent statute”) can neither enlarge nor go
beyond scope of parent statute, nor can they override or conflict with its
provisions--If rules are repugnant to or inconsistent with provisions of parent
statute, they are ultra vires and invalid--The primary purpose of rules
is to provide procedural details for carrying out purposes of parent
statute--They cannot militate against substantive provisions of parent
statute--Provision of parent statute--As a provision in parent statute that is
inconsistent with any provision of Constitution is ultra vires Constitution and
thus invalid--The rules that are inconsistent with any provision of Constitution
are also ultra vires Constitution and thus invalid.
[Pp.
769 & 770] 2W, 2X & 2Y
UIB v. Mohan
Bashi PLD 1959 SC 296; East Pakistan v. Nur Ahmad PLD 1964 SC 451; Hirjina Salt
Chemicals v. Union Council 1982 SCMR 522; Ziauddin v. Punjab Local Government
1985 SCMR 365; Matloob Ali v. ADJ 1988 SCMR 747; Chairman Railway Board v.
Wahab Ud Din & Sons PLD 1990 SC 1034; Mehraj Flour Mills v. Provincial
Government 2001 SCMR 1806; Collector of Sales Tax v. Superior Textile Mills PLD
2001 SC 600; Pakistan v. Aryan Petro Chemical Industries 2003 SCMR 370; Ahmad
Hassaan v. Govt. of Punjab 2005 SCMR 186; Suo Motu Case No. 13 of 2009 PLD 2011
SC 619; Suo Motu Case No. 11 Of 2011 PLD 2014 SC 389 and NEPRA v. FESCO 2016
SCMR 550 ref. Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602
(Many previous cases on point are cited and discussed in it); Mobashir Hassan
v. Federation of Pakistan PLD 2010 SC 265; Baz Muhammad Kakar v. Federation of
Pakistan PLD 2012 SC 923; Lal Khan v. Crown PLD 1955 Lah. 215
(FB) and Shorish Kashmiri v. Govt. of West Pakistan PLD 1969 Lah 438 (DB) ref.
Election Rules, 2017--
----R. 94--Elections Act, (XXXIII of
2017), Ss. 215(5)--Constitution of Pakistan, 1973, Arts. 51(6)(d) & (e) and
106(3)(c)--Scope of--Explanation to Rule 94 of Election Rules, being beyond scope
of Section 215(5) of Elections Act and inconsistent with provisions of Articles
51(6)(d) & (e) and 106(3)(c) of Constitution, is declared ultra vires Elections
Act and Constitution, thus void and invalid.
[P.
770] 2Z
Constitution
of Pakistan, 1973--
----Art. 17(2)--Right to Participate--The
right to participate in and contest an election as a political party is
included in right to form or be a member of a political party--The right to
form or be a member of a political party guaranteed by Article 17(2) includes
not only right to participate in and contest elections as a political party but
also right to form Government and complete prescribed tenure if members of political
party constitute requisite majority.
[P.
771] 3A & 3B
Nawaz Sharif
v. President of Pakistan PLD 1993 SC 473; Benazir Bhutto v. Federation of
Pakistan PLD 1988 SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC
66 and Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.
Elections Act, 2017 (XXXIII of 2017)--
----S.
67(2)(3)--Difference between “interpretation” and “construction” of
statutes--Strictly speaking, construction and interpretation are not same--Construction,
is drawing of conclusions with respect to subjects that are beyond direct
expression of text, from elements known and given in text, while interpretation
is process of discovering true meaning of language used--Both processes may be
used in seeking legislative intent in a given statute--If legislative intent is
not clear after completion of interpretation, then Court will proceed to
subject statute to construction. [P. 775]
3D
Haider Zaidi
v. Abdul Hafeez 1991 SCMR 1699; Crawford, The
Construction of Statutes, (1st ed.) pp. 240-242 ref.
Constitution
of Pakistan, 1973--
----Arts.
51(6)(d) & (e) & 106(3)(c)--Seats reserved for women and
non-Muslims--For election of members to seats reserved for women, each Province
is a single and separate constituency, while for election of members to seats
reserved for non-Muslims, whole country is constituency. [P. 783] 3H
Constitution of Pakistan, 1973--
----Art. 51(6)(d)(e)--Word “Won” & “Secured”--The term “won” is
used in provisos to both paragraphs (d) and (e) of Article 51(6). Considering
both these closely related provisions conjunctively and harmoniously, words
“secured” and “won” have been used interchangeably--It can be concluded with
reasonable certainty that words “secured” and “won” carry same meaning in
paragraph (d) of Article 51(6) and have been used interchangeably in its main
provisions and proviso. [Pp.
783 & 784] 3I & 3K
Words and Pharasis--
----Statue, Statute is a consolidating enactment where words are
derived from two or more earlier enactments, or statute is compiled from
different sources, or statute is product of many minds jointly, or statute
undergoes alterations and additions from various hands in process of its
enactment in Legislature, etc. [P.
784] 3J
Maxwell on Interpretation
of Statutes (12th ed.) pp. 278-289 and Bennion on Statutory Interpretation (7th
ed.) pp. 513-517. See also Craies on Legislation (9th ed.) pp. 693-694 ref.
Constitution
of Pakistan, 1973--
----Art.
51(6)(d)--The subject and object of proviso to Article 51(6)(d) of constitution,
1973--Total number of general seats won (secured) by a political party” is to
be determined for purpose--The proviso does not in any way extend or explain meaning
of expression “political party” as used in main provisions of paragraph. [P. 785] 3L
Constitution
of Pakistan, 1973--
----Art. 51(6)(d)--Proviso--The
proviso to Article 51(6)(d) is not a true proviso--It excepts a particular case
from rule stated in main provisions by limiting or qualifying applicability of main
provisions--The proviso is not a limiting or qualifying clause of main
provisions but is, in itself, a substantive provision--Best principle is that
irrespective of label, contents of main provisions and proviso are to be read
and construed together to ascertain intention of Legislature. [P. 786] 3M
East &
West Steamship Co. v. Pakistan PLD 1958 S C 41 (5MB) per Cornelius, J.;
Pramatha Nath v. Kamir Mondal PLD 1965 SC 434; Hamdard Dawakhana v. C.I.T. PLD
1980 SC 84 (5MB); Kadir Bux v. Province of Sindh 1982 SCMR 582 (5MB); K.E.S.C.
Progressive Workers’ Union v. K.E.S.C. Labour Union 1991 SCMR 888 (4MB) and
Nawab Bibi v. Allah Ditta 1998 SCMR 2381; Hamdard Dawakhana v. C.I.T. PLD 1980
SC 84 (5MB). See also C.I.T. v. M/s Phillips Holzman PLD 1968 Kar. 95 (FB) and PIFFA v. Province of Sindh 2017 PTD 1 (DB);
Commissioner of Stamp Duties v. Atwill [1973] AC 558 ref.
Constitution of Pakistan, 1973--
----Art. 51(6)(d)--Proviso--For
determining true character of proviso--The contents of main provisions and proviso
are to be read and construed together to ascertain intention of Legislature--The
proviso, is in substance a fresh enactment, adding to and not merely [limiting
or] qualifying that which goes before’ in main provisions. [P. 787] 3N & 3O
Words & Phrases--
----“Such”--The
effect of use of word “such” with “political party” in latter part of proviso--It
is a general rule of literal construction of statutes that ‘a qualifying or
relative word, phrase, or clause, such as “which”, “said” and “such”, is to be
construed as applying to word, phrase or clause next preceding, or as is
frequently stated, to next preceding antecedent, and not as extending to or
including others more remote, unless a contrary intention appears.
[P.
788] 3P
Maxwell
on Interpretation of Statutes (12th ed.) p. 331 ref.
Words & Phrases--
----Constitution--A constitution, is ‘the fundamental law of a
state, containing principles upon which government is founded, regulating division
of sovereign powers, and directing to what persons each of these powers is to
be confined, and manner in which it is to be exercised--A constitution must be
construed as an organic whole, harmonising its various parts, particularly
those closely interlinked, and trying to give due effect to all of them, so as
to make it an effective and efficacious instrument for smooth and good
governance of state; one of ultimate objectives sought to be achieved by it. [P. 788] 3R,
3S
Cooley, A treatise on Constitutional Limitations,
(1st ed.) p. 2 ref. Presidential Reference PLD 1957 SC 219; Fazlul
Quader Chowdhry v. Abdul Haque PLD 1963 SC 486; State v. Zia-ur-Rahman PLD 1973
SC 49; Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151; Nawaz Sharif v.
President of Pakistan PLD 1993 SC 473; Al-Jehad Trust v. Federation of Pakistan
PLD 1996 SC 324; Shahid Nabi v. Chief Election Commissioner PLD 1997 SC 32;
Wukala Mahaz v. Federation of Pakistan PLD 1998 SC 1263; Munir Hussain Bhatti
v. Federation of Pakistan PLD 2011 SC 308 + 407; Presidential Reference PLD
2013 SC 279; Judges’ Pension case PLD 2013 SC 829 and D.B.A., Rawalpindi v.
Federation of Pakistan PLD 2015 SC 401 ref.
Political Parties
----The opposition criticises policies
and actions of Government and thus calls Government to justify its policies and
actions, thereby making it accountable to people--Political parties are
institutions of great importance in a parliamentary democracy and a vital
feature of a representative government. [P.
791] 3X
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.
Proportional Representation
System of Political Parties--
----Proportional representation
system of political parties is a composite expression--A composite expression,
must be construed as a whole. While a certain meaning can be collected by
taking each word in turn and then combining their several meanings, but it does
not follow that this is true meaning of whole phrase--Each word in phrase may
modify meaning of others, giving whole its own meaning--It, therefore,
certainly is not a satisfactory method of arriving at meaning of a compound
phrase to sever it into several parts. [Pp.
792 & 793] 3Z
Bennion on Statutory
Interpretation (7th ed.) pp. 533-535;
Mersey Docks and Harbour Board v. Henderson
Bros. (1888) 13 App Cas 595 ref.
Constitution of Pakistan, 1973—
----Art. 51(6)(d)--Intention
of Legislature--The intention of Legislature is to be discovered by taking words
as they occur--in combination in which they are placed--not by breaking up a
compound expression and weighing words separately--If a composite expression is
comprehensive, it is unnecessary to determine dividing line between different
terms used in expression. [P.
793] 4A
Savoy
Overseers v. Art Union of London [1896] AC 296 per Lord MacNaghton ref.
Elections Rules, 2017--
----R. 95(2)--Constitution
of Pakistan, 1973, Art. 51(6)(d)--Reserve seats--Principle of--Constitutional
objective of providing seats reserved for women and non-Muslims--Proportional
representation of political parties--The principle of proportional
representation of political parties, according to which members to reserved seats
are elected, aims to reflect electoral support for political parties in composition
of legislative bodies--Rule 95(2) of Elections Rules, which provides that seats
won by independent candidates, other than those who join a political party,
shall be excluded for purpose of determining share of each political party, is
thus found consistent with constitutional provisions, as it ensures constitutional
objective that no reserved seat should ordinarily remain vacant. [P. 793] 4B & 4C
Benazir Bhutto v. Federation of Pakistan PLD
1988 SC 416 and Ghulam Qasim v. Razia Begum PLD 2021 SC 812 ref.
Unlawful Acts and Ommission--
----Due to unlawful acts and omissions of Returning Officers
and Commission, PTI, its candidates and electorate have suffered loss of some
of their constitutional and statutory rights, particularly their right to
proportional representation in reserved seats. [P.
801] 4G
Di Santo v. Pennsylvania (1927) 273 US 34 per Justice Brandeis, approvingly cited in Manager, J&K State
Property v. Khuda
Yar PLD 1975 SC 678;
Subsequent Filing of a Declaration--
----Subsequent
filing of a declaration to be treated as candidates of PTI-Nazriati or as
independent candidates, 39 returned candidates, out of list of 80 submitted by Commission,
who had either filed party certificates (party tickets) of PTI or declared
their affiliation with PTI in their nomination forms or statutory declarations
were returned candidates of PTI--Those candidates whom our colleagues had
treated as independent returned candidates because they had not mentioned
themselves as belonging to PTI in their nomination papers--In respect of these
candidates, who are 41 according to record produced by Commission, our
colleagues have presumed that they were independent candidates, and that none
of them had appeared before Court to rebut that presumption. [P. 802] 4H
Elections Act, 2017 (XXXIII of 2017)--
----Ss. 4, 4(1), 8, 8(c) &
66--Constitution of Pakistan, 1973, Art. 187(1)--Election Commission & Political Party--According to Section 66
of Elections Act, two elements make a person candidate of a political party:
(i) candidate’s own declaration that he belongs to that party, and (ii) party’s
certificate (party ticket) nominating him as its candidate. It is thus a matter
between candidate and party to which he claims affiliation--No consent or
authorisation from any third person or authority is required to establish their
relationship and candidate’s status. This is substance and spirit of Section 66
of Elections Act--The Commission, however, again made an unlawful omission by
failing to exercise its general powers to undo effects of its earlier unlawful
acts and omissions and to restore PTI to its constitutional right as a
Parliamentary Party and its entitlement to reserved seats proportionate to won
general seats, thereby placing PTI, insofar as possible, in same position it
would have been in if said unlawful acts and omissions had not occurred--The
previous unlawful acts and omissions, as well as said unlawful omission, render
impugned order of Commission ultra vires
Constitution, without lawful authority and of no legal effect.
[Pp.
803 & 804] 4I & 4J
Election
Commission--
----As a central pillar of democratic
electoral processes, Commission, in its role as a guarantor institution and
impartial steward, is tasked with ensuring transparency and fairness of
elections to maintain public trust in electoral system--This is essential for legitimacy
of elected representatives and stability of political system--The Commission
must uphold democratic principles and integrity of electoral processes by
ensuring that elections truly reflect will of people, thereby preserving democratic
fabric of nation.
[P.
805] 4K
Micheal Pal,
Electoral Management Bodies as a Fourth Branch of Government, Review of
Constitutional Studies (Volume 21, Issue 1, 2016). See also Bruce Ackerman, The
New Separation of Powers (2000) 113:3 Harvard Law Review 633 and Tarunabh
Khatian, Guarantor Institutions, Asian Journal of Comparative law (Cambridge
University Press 2021 ref.
Constitution
of Pakistan, 1973--
----Article 218(3)--Election Commission--Nature of Proceedings--Prime
function--Quasi-Judicial function--Aggrieved person under Article 218(3) of Constitution,
is to ‘organize and conduct election and to make such arrangements as are
necessary to ensure that election is conducted honestly, justly, fairly, and in
accordance with law, and that corrupt practices are guarded against’--A body performing its
quasi-judicial function in a matter between two rival parties cannot be treated
as an aggrieved person if its decision is set aside or modified by a higher
forum or by a Court of competent jurisdiction.
[P.
805] 4L
Aam Log Itehad v. Election Commission PLD 2022 SC
39 ref. Wafaqi Mohtasib v. SNGPL PLD 2020 SC 586; A. Rahim Foods v.
K&N Foods PLD 2023 SC 516 ref.
Majoriy
view by Syed Mansoor Ali Shah, Munib Akhtar, Muhammad Ali Mazhar, Ayesha A.
Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat
Khan, JJ.:
|
In Civil
Appeals For the Appellants |
Mr. Faisal Siddiqui, ASC, Assisted
by Mr. Ammar Rafique, Adv. a/w Mr. Ajmal Ghaffar Toor, ASC Mr. Haider Bin
Masud, Adv. and Mr. Sahibzada M. Hamid Raza (appellant in person) |
|
For Respondent No. 1-ECP (In both Appeals) |
Mr. Sikandar Bashir Mohmand,
ASC Assisted by Mr. Abdullah Noor And Hamza Azmat, Advocates a/w Mr. M.
Arshad, D.G (Law) ECP.Ms. Saima Tariq Janjua, D.D. Law (ECP) |
|
For PPPP |
Mr. Farooq H. Naek, Sr. ASC Asstt. by Mr. Asad Mehmood Abbasi, ASC |
|
For PML(N) |
Mr. Haris Azmat, ASC |
|
For MQM |
Nemo. |
|
For Respondent No. 5 |
Mr. M. Siddique Awan,
ASC. |
|
For Respondent No. 9 |
Syed Rifaqat Hussain
Shah, ASC/AOR. |
|
For Respondent No. 11 |
Mr. Kamran Murtaza, Sr.
ASC |
|
For Respondents No. |
Mr. M. Makhdoom Ali Khan,
Sr. ASC. |
|
For Respondent No. 20 |
Mr. Zulfikar Khalid
Maluka, ASC. |
|
For Respondent No. 9 |
Mr. M. Shahzad Shaukat,
ASC. |
|
In Civil Petitions |
|
|
For
the Petitioners |
Mr. Asad Jan Durrani,
ASC. |
|
For the Petitioners |
Mr. Shah Faisal
Utmankhail, |
|
For Respondent No. 1 |
Mr. Amir Javed, ASC |
|
For R-6 (in CP 1612/24) and For R-2 to 5 (in CP 1616/24) |
Mr. Shah Khawar, ASC |
|
For Respondent No.1 to 6 (In CP.1613 & 1617/24) |
Mr. Kamran Murtaza, Sr.
ASC |
|
For Respondents No. 1, 2,
3, 8 (In CP.1614/24) |
Mr. Imran Khan, ASC |
|
In CMAs |
|
|
For the Applicants: |
Mr. Salman Akram Raja,
ASC. |
|
On Court Notice: |
Mr. Mansoor Usman Awan,
Attorney-General for Pakistan. |
|
For Govt. of Punjab: |
Mr. Khalid Ishaq, |
|
For Govt. of |
Mr. Shah Faisal
Utmankhail, Advocate-General, KP. |
|
For Govt. of Sindh: |
Mr.
Miran Muhammad Shah, Addl. A.G. |
|
For Govt. of Balochistan: |
Mr. Muhammad Asif Reki, |
|
For ICT: |
Mr.
Muhammad Ayyaz Shaukat, A.G. |
|
Research Assistance: |
Umer
A. Ranjha, Judicial Law Clerk. |
|
Date of Hearing: |
09.07.2024. |
Table of Contents
Preface ......................................................................................... 749
Nature of election disputes and responsibility of
Courts ................ 751
Relevant facts of the case............................................................... 756
PTI’s application for impleadment (CMA No. 5913 of
2024) ........... 757
Claim for allocating reserved seats to SIC or to PTI ...................... 759
Questions of law ............................................................................ 759
Scope of fundamental right guaranteed by Article 17(2)
of the Constitution 760
Right to vote and the freedom of expression guaranteed
under Article 19 762
(i) What is the consequence of declaring a political
party ineligible to obtain an election symbol under Section 215(5) of the
Elections Act 2017? Does such a declaration affect the political party’s other
constitutional and statutory rights?........................................................................ 763
Principle of strict construction of statutes providing
penal consequence or curtailing fundamental rights 765
Answer to question (i) and its applicability to PTI ......................... 767
Explanation to Rule 94 of the Elections Rules 2017 is
ultra vires the Elections Act and the Constitution 768
(ii) Can a candidate nominated by a political party
ineligible to obtain an election symbol be mentioned as an independent
candidate in the list of contesting candidates (Form-33), and can such a
returned candidate be notified as an independent returned candidate in the
Section-98 Notification? 770
Right to contest elections as a political party
through its nominated candidates is a fundamental right under Article 17(2) of
the Constitution ................................................ 770
The order of the Commission, dated 2 February 2024,
made on the application of Mr. Salman Akram Raja (a PTI candidate) was both unconstitutional
and unlawful. ........... 772
Difference between “interpretation” and “construction”
of statutes 775
Answer to question (ii) and its applicability to PTI......................... 775
Validity of party tickets issued by Mr. Gohar Ali Khan
as Chairman PTI 776
(iii) Do Articles 51(6)(d)
& (e) and 106(3)(c) of the Constitution refer to political parties that
have contested for and won general seats or to all enlisted political parties? ......... 781
Presumption that same words used in a statute carry
same meaning and different words different meanings, is not absolute.............................................................................. 784
Words “secured” and “won” carry the same meaning in
paragraph (d) of Article 51(6) and have been used interchangeably in its main
provisions and proviso................... 784
The subject and object of the proviso to Article 51(6)(d) ................. 785
The proviso to Article 51(6)(d)
is not a true proviso ....................... 785
The effect of the use of the word “such” with
“political party” in the latter part of the proviso 788
Harmonious reading of Article 51(6(d) with Article 63A(2) ............. 788
Answer to question (iii) and its applicability to SIC
and PTI .......... 790
(iv) How is the proportional representation of a
political party to be calculated for the allocation of reserved seats under
Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution? 790
Position of political
parties and independent members of Parliament in a parliamentary democracy 791
Proportional representation
system of political parties is a composite expression 792
Constitutional objective of
providing seats reserved for women and non-Muslims 793
Answer to question (iv), and its applicability to PTI and other political
parties 794
Denial of due share of proportional
representation in the reserved seats violates the fundamental rights of the
politicial party and the electorate guaranteed by Articles 17(2) and 19 of the
Constitution. 794
What
relief would serve the ends of justice? .................................. 795
Unlawful
acts and omissions of the Returning Officers and the Commission that caused
prejudice to PTI 797
The scope of powers of the Commission under Article 218(3) and of
the Supreme Court under Article 187(1) of the Constitution. ...................................................................... 798
Point
of divergence between eight Judges and three Judges.......... 800
The
Commission has failed to perform its role as a “guarantor institution” of
democratic processes 804
PTI
is before the Court ................................................................. 807
Relief
granted; short order reproduced ......................................... 808
Judgment
Syed Mansoor Ali Shah J.-
Preface
At the core of our democratic Constitution lies the will of the
people of Pakistan, with free and fair elections being fundamental to
democracy. The principle that ‘the most important political office is that of
the private citizen’[1]
underscores the crucial role of the people, whose right to vote is the
lifeblood of democratic governance. Democracy thrives on the belief that
authority inherently resides in the people, a principle enshrined in the
Constitution of every democratic nation, including ours. Our Constitution is
not merely a governmental blueprint but a covenant affirming the supreme role
of the people in shaping their destiny.
2. Under our Constitution, while the sovereignty of the entire
Universe belongs to Almighty Allah alone, the authority is to be exercised by
the people of Pakistan as a “sacred trust” within the limits prescribed by Him.
It posits that people are entrusted with the responsibility of governance,
which is to be exercised through their chosen representatives. The notion of a
“sacred trust” elevates the responsibility of both the government and the
judiciary in our Islamic republic. It embeds a moral dimension into the
practice of democracy, where the fidelity to this trust is seen as paramount.
In the context of elections, this “sacred trust” implies that all the actors in
the electoral process must adhere to a higher standard of fair and honest
conduct ensuring electoral integrity.
3. Election authorities, as “electoral management bodies”, are
the “guarantor institutions” of democratic processes and are critical to
democratic governance, akin to a “fourth branch of government”. Their
constitutional role is to ensure the conduct of elections by providing an equal
and fair competitive field for all political entities and protect citizens’
rights to vote. As an impartial steward of the electoral process, the Election
Commission of Pakistan is not only an administrative body but also a guardian
of electoral integrity and democracy’s legitimacy. When election authorities
engage in actions that undermine these principles, such as unlawfully denying
the recognition of a major political party and treating its nominated
candidates as independents, they not only compromise the rights of these
candidates but also significantly infringe upon the rights of the electorate
and corrode their own institutional legitimacy.
4. Political parties play a crucial role in representative
democracies, acting as intermediaries between the state and its citizens. They
are uniquely positioned to shape and structure electoral choices, organize
public opinion, and integrate diverse interests into coherent platforms,
thereby making electoral decisions meaningful and ensuring the proper
functioning of democracy.[2]
Moreover, political parties contribute to stable governance by facilitating
consistent lawmaking and ensuring regular accountability. As such, they are
essential to electoral competition and are key to the
legitimacy, efficiency, and accountability of state institutions. This central
role of political parties in the constitutional process is referred to as
“constitutional particracy”, meaning a system in which political parties serve
as the primary foundation of governance.[3]
For democracy to endure, political parties must be supported and strengthened,
not eliminated. A democracy without political parties is unlikely to sustain
itself for long.
5. When the Election Commission
errs or makes significant mistakes impacting the electoral process, judicial
intervention becomes necessary to rectify them and ensure electoral justice.
The judiciary, tasked with ensuring electoral justice, must foremost preserve
the will of the people. Election disputes are viewed through this lens,
emphasizing electoral integrity and democracy’s legitimacy to maintain public
confidence in governance. Electoral justice is vital to protecting political
and electoral rights and is intertwined with electoral integrity. The role of
the Supreme Court of Pakistan in overseeing electoral integrity is crucial for
sustaining public trust in the democratic process, and the Court’s power to do
“complete justice” is a critical tool in the constitutional arsenal of this
Court, enabling it to prevent democratic backsliding,[4]
and protect democracy effectively with a focus on the electorate’s rights.
Denying electoral justice and compromising electoral integrity would undermine
the very legitimacy of democracy.
6. When static interpretation fails
to preserve the vitality of the Constitution’s text and principles, judges have
typically rejected it in favor of constitutional fidelity.[5]
Constitutional fidelity as a concept embodies that to be faithful to the
Constitution is to interpret its words and to apply its principles in ways that
preserve the Constitution’s meaning and democratic legitimacy over time.
Constitutional fidelity and legitimacy both are framed in a means-end
relationship; legitimacy as the end and constitutional fidelity as a means to
that end.[6]
We must remember that Constitutions are not ephemeral enactments, designed to
meet passing situations but are ‘designed to approach immortality as nearly as
human institutions can approach it.’[7]
7. With this understanding of the
importance of the will of the people, fair conduct of elections, role of the
Election Commission as a guarantor institution, centrality of political parties
to the electoral process, electoral justice, electoral integrity and rights of
the electorate in a democracy, we approach this case.
Nature of
election disputes and responsibility of Courts
8. Before proceeding to the
relevant facts of the case and the issues arising therefrom, it is necessary to
underscore the nature of election disputes and the responsibility of Courts and
other judicial and quasi-judicial bodies in adjudicating such disputes. During
the hearing of these appeals, when certain facts and points of law were
questioned by some members of the Bench, the learned counsel for the
respondents submitted that those facts were not in the pleadings and that those
points of law did not arise from the facts presented in the pleadings. They
contended that in exercising its appellate jurisdiction under Article 185 of
the Constitution, this Court cannot go beyond the pleadings. We are afraid,
this contention is misconceived. It results from a misunderstanding of treating
election disputes as mere civil disputes between two private parties, similar
to other civil disputes.
9. Such a contention based on
analogizing a petition on an election dispute to a civil suit was repelled by
Morris J. as far back as 1875 in the Tipperary Election Case,[8]
with the observation:
I consider this is a fallacious analogy,
because a petition [on an election dispute] is not a suit between two persons,
but is a proceeding in which the constituency itself is the principal party
interested.
This legal position
was further elucidated the next year in 1876 by Grove J. in Aldridge[9]
as follows:
Numerous provisions of the Act have reference
not merely to the individual interests or rights of petitioners or respondents,
but to rights of electors, of constituencies, and of the public, in purity of
election and in having the member seated who is duly returned by a majority of
proper votes. …
This English
jurisprudence on the nature of election disputes was adopted in India and
Pakistan. In Sreenivasan,[10]
Aiyar J. of the Madras High Court also repelled such a contention of treating
an election petition similar to a civil suit. He elaborated on the difference
in the nature of proceedings of a civil suit and an election petition and
eloquently enunciated the legal position thus:
This view proceeds principally on the basis
that an election petition is in all essential respects similar to an ordinary
civil suit; but that is not quite so. An election petition is not a matter in
which the only persons interested are candidates who strove against each other
at the elections. The public also are substantially interested in it and this
is not merely in the sense that an election has news value. An election is an
essential part of the democratic process. The citizens at large have an interest
in seeing and they are justified in insisting that all elections are fair and
free and not vitiated by corrupt or illegal practices. … In view of the
manifest difference between a civil suit and an election petition it will not
be right, it seems to me, to press the analogy founded
on the basis of a civil suit very far when we have to deal with an election
petition.
Similarly, speaking for the Supreme
Court of India in Inamati,[11]
Bhagwati J. observed:
It is this interest of
the constituency as a whole which invests the proceedings before the Election
Tribunals with a characteristic of their own and differentiates them from
ordinary civil proceedings.
An election contest as
aforesaid would result in the declaration of the properly qualified candidate
as duly elected and the maintenance of the purity of the elections in which the
constituency as a whole is vitally interested and no person would get elected
by flagrant breaches of the election law or by corrupt practices.
Again, in Mohinder Singh,[12]
Krishna Iyer J. adeptly rearticulated the legal position as follows:
[A]n election dispute
is not like an ordinary lis between private parties. The entire electorate is
vicariously, not inertly, before the Court. … We may, perhaps, call this
species of cases collective litigation where judicial activism assures justice
to the constituency, guardians the purity of the system and decides the rights
of the candidates. … Therefore, it is essential that Courts, adjudicating upon
election controversies, must play a verily active role, conscious all the time
that every decision rendered by the Judge transcends private rights and defends
the constituency and the democracy of the country.
In his inimitable style, he underscored
the duty of Courts to exercise “vigilant monitoring” of the election process,
to call to order “lawless behaviour”, and to function as “the bodyguards of the
People against bumptious power, official or other” in election disputes thus:
[T]he periodical
process of free and fair elections, uninfluenced by the caprice, cowardices or
partisanship of hierarchical authority holding it and unintimidated by the
threat, tantrum or vandalism of strong-arm tactics, exacts the embarrassing
price of vigilant monitoring. Democracy digs its grave where passions, tensions
and violence, on an overpowering spree, upset results of peaceful polls, and
the law of elections is guilty of sharp practice if it hastens to legitimate
the fruits of lawlessness. The judicial branch has a sensitive responsibility
here to call to order lawless behaviour. Forensic non-action may boomerang, for
the Court and the law are functionally the bodyguards
of the People against bumptious power, official or other.
In Pakistan, the above legal position
was reiterated by Syed Jamshed Ali J. in Dilshad Khan[13]
and Irshad Hussain,[14]
respectively, as follows:
An election dispute is
not stricto senso a dispute inter-parties because it affects the entire constituency, who have a right to insist that they are
represented by a person who commands the will of the majority of electorate.
Therefore, it is in the public interest that the election disputes are
expeditiously resolved and parties are not put to a protracted trial.
[A]n election dispute
is not necessarily a lis inter se parties because it
involves the entire constituency, therefore, all efforts are required to be
made to expeditiously dispose of an election petition and an election petition
is not to be treated like a civil suit.
We may respectfully say that the above
cases correctly enunciate the nature of election disputes and the
responsibility of Courts and other judicial and quasi-judicial bodies in
adjudicating such disputes. While we agree with these statements and principles
of law, we think it would also be apposite to summarise our understanding as
well.
10. Elections are a crucial part of the democratic process, and
the public has a major stake in ensuring that they are held free and fair,
unmarred by corrupt or illegal practices. Therefore, unlike ordinary civil
cases, election cases involve substantial public interest. An election dispute
is fundamentally different from other civil disputes, as it is not solely a
dispute between two contesting parties but a proceeding where the constituency
itself is the principal interested party. These cases involve not just the
rights of the contesting candidates or political parties but also the rights of
the voters, constituencies and the public. Election cases aim to fill public
offices by properly qualified and duly elected candidates and to maintain the purity
of elections, ensuring that no one takes charge of a public office through
flagrant breaches of election laws or corrupt practices. The proceedings in
election cases thus have unique characteristics because they serve the
interests of the entire constituency, differentiating them from ordinary civil
proceedings. This distinction clearly demonstrates the flaw in treating an
election case as an ordinary civil case and limiting the judicial inquiry to
the pleadings of the parties as it is in adversarial proceedings.
11. Since election cases are a species of collective or public
interest litigation, the proceedings therein are inquisitorial in nature. In
these cases, any judicial intervention is to ensure justice for the
constituency and to safeguard the integrity of the electoral system. The
process of free and fair elections requires vigilant judicial monitoring to
check the influence of any capricious or partisan election or executive
authority. In this regard, Courts have a critical responsibility to address
lawless behaviou’r in the electoral process, as their inaction or delay could
undermine the legitimacy and credibility of the whole election. In adjudicating
election controversies, Courts must therefore play an active role in an
inquisitorial manner, defending the rights of the constituency and the values
and principles of democracy. They must act as guardians of the fundamental
rights of the people against any misuse of power or illegal action in the
electoral process.
12. In handling election disputes, the primary obligation of
Courts is to protect the electorate’s right to fair representation, ensuring
that only candidates who have legitimately won the support of the electorate
through fair processes assume office. Courts must rise above political biases
and interests, focusing solely on legal and evidential matters to safeguard the
electorate’s interests. Their approach to election disputes reflects the
judiciary’s overarching responsibility to uphold the integrity of the electoral
process. As the highest Court in the judicial hierarchy, this Court bears a
profound duty to prioritize and protect the rights of the electorate, ensuring
that their voice and representation in elected bodies are not compromised by
procedural failings or errors in the electoral process. This duty underscores
the Court’s unique and expansive constitutional mandate to oversee the
electoral cycle comprehensively. Such a judicial approach not only reinforces
the legitimacy of the electoral system but also strengthens the foundations of
democratic governance by ensuring that the will of the electorate is accurately
and fairly represented.
13. Unfortunately, the above legal position regarding the
nature of election disputes and the responsibility of Courts was not brought to
the notice of the Bench by the learned counsel for the parties while making
their arguments. However, eleven members of the Bench, being themselves
aware of the above legal position, proceeded to inquire into the facts and
points of law that were not presented before the Court below, that is, the
Peshawar High Court. Although these eleven members of the Bench disagreed to
some extent on granting the eventual relief, their awareness of the true legal
position as to the nature of election disputes and the responsibility of Courts
led them to a broader and more comprehensive judicial inquiry into all the
relevant facts and law points concerning the election dispute involved in the
present case, as set out next.
Relevant facts of the case
14. On 15 December 2023, the Election Commission of Pakistan
(“Commission”) announced the election programme for the General Elections-2024
to the National Assembly and Provincial Assemblies. According to this
programme, the last date for candidates to file nomination papers with the Returning
Officers was 22 December 2023, which was extended on that day to 24 December
2023. On 22 December 2023, the Commission also decided the then-pending matter
of intra-party elections of the political party, Pakistan Tehreek-e-Insaf
(“PTI”). The Commission determined that PTI had not conducted its intra-party
elections in accordance with its constitution and election laws. As a result,
the Commission declined to recognize PTI’s intra-party elections and declared
PTI ineligible to obtain its election symbol. Although this decision was
initially suspended on 26 December 2023 and subsequently set aside on 10
January 2024 by the Peshawar High Court, this Court restored the Commission’s
decision on 13 January 2024. PTI candidates were thus not allotted the party
symbol of PTI but instead were allotted various different symbols that had been
prescribed by the Commission for independent candidates.
15. In the course of the election programme, when the Returning
Officers published the lists of contesting candidates (Form-33),[15]
they mentioned PTI candidates as independent candidates. One of the PTI
candidates, Mr. Salman Akram Raja, challenged this action by the Returning
Officer of his constituency before the Commission. By its order dated 2
February 2024, the Commission rejected his challenge and declared him an
independent candidate. The poll for the elections was then held on 8 February
2024, and PTI candidates were notified by the Commission as independent
returned candidates in the notification published in the official Gazette under
Section 98 of the Elections Act 2017 (“Section-98 Notification”).
16. After the publication of
Section-98 Notification, a substantial number of independent returned
candidates (86 for the National Assembly; 107 for the Punjab Assembly; 90 for
the Khyber Pakhtunkhwa Assembly; and 9 for the Sindh Assembly) joined a
political party, Sunni Ittehad Council (“SIC”), to obtain the share of
proportional representation in the seats reserved for women and non-Muslims in
the National Assembly and the Provincial Assemblies of Khyber Pakhtunkhwa,
Punjab and Sindh. SIC then informed the Commission of the joining of these
returned candidates and requested the Commission, through four separate
applications (letters) dated 21 February 2024, to allocate to it its due share
in the seats reserved for women and non-Muslims in the National Assembly and
the said three Provincial Assemblies.
17. Certain other political
parties, such as Pakistan Muslim League (Nawaz) (PML(N))
and Muttahida Qaumi Movement (Pakistan) (MQM(P)), filed applications opposing
SIC’s request for reserved seats and prayed for the allocation of the reserved
seats to them and other eligible political parties. Some individuals also filed
applications opposing the SIC’s request and praying that SIC should not be
treated as a parliamentary party. The political party, Pakistan People’s Party
Parliamentarians (PPPP), appeared before the Commission as a proforma
respondent in the application filed by MQM(P), while the political parties, Jamiat
Ulema-e-Islam Pakistan (JUIP) and Pakistan Muslim League (PML), appeared in
response to the Commission’s notice and opposed SIC’s request.
18. By its order dated 1 March 2024, the Commission rejected SIC’s
applications and decided that the reserved seats for women and non-Muslims,
which had been requested by SIC but declined, would be allocated to other
political parties as per the proportional representation system of political
parties. Accordingly, those reserved seats (19 for women and 3 for non-Muslims
in the National Assembly; 21 for women and 4 for non-Muslims in the Khyber
Pakhtunkhwa Assembly; 24 for women and 3 for non-Muslims in the Punjab
Assembly; and 2 for women and 1 for non-Muslims in the Sindh Assembly – 78 in
total – hereinafter referred to as the “disputed reserved seats”) were
allocated to other political parties. SIC challenged the
Commission’s order before the Peshawar High Court in writ jurisdiction.
By its judgment dated 25 March 2024 (“impugned judgment”), the Peshawar High
Court dismissed the SIC’s challenge and upheld the Commission’s order. Hence,
these appeals were filed by SIC with leave of the Court.
PTI’s
application for impleadment (CMA No. 5913 of 2024)
19. During the pendency of these appeals, PTI filed an
application seeking its impleadment in these appeals and submitting therein the
facts and circumstances under which its returned
candidates joined SIC. PTI submitted in its application, inter alia, that PTI issued party tickets to its candidates, which
were to be filed with the respective Returning Officers by 4 pm on 13 January
2024, the day fixed for the allotment of election symbols. The Supreme Court
took up the Commission’s appeal against the judgment of the Peshawar High Court
in the matter of PTI’s intra-party elections and its election symbol on 12
January 2024 for hearing, which continued until late evening on 13 January
2024.
19.1. Faced with the possibility of an adverse decision by the
Supreme Court after 4 pm that day, PTI entered into an arrangement with another
political party, PTI-Nazriati, under which party tickets were issued to PTI
candidates by that party to obtain a common symbol for PTI candidates to
prevent the disenfranchisement of a large part of the electorate. However, the
same day, the Chairman of PTI-Nazriati appeared on national television channels
and disavowed the tickets issued. At about the same time, the Commission also
issued an order dated 13 January 2024 directing the Returning Officers not to
accept a political party’s tickets for candidates who belonged to another
political party. Therefore, most of PTI candidates withdrew the tickets of
PTI-Nazriati and presented PTI’s tickets to the Returning Officers. Some of the
Returning Officers placed the same on file while others refused to receive the
same pending the decision of the Supreme Court.
19.2. Awaiting the decision of the Supreme Court, the
Commission extended the time for submitting the party tickets and the allotment
of election symbols till 12 pm that day. The Supreme Court announced its short
order at about 11 pm on 13 January 2024, whereupon the Returning Officers
rejected PTI’s tickets and, by treating PTI candidates as independent
candidates, allotted them different election symbols. The poll was held on 8
February 2024, and PTI candidates won a large number of seats in the National
and Provincial Assemblies. These candidates were notified as independent
returned candidates by the Commission by relying upon Rule 94 of the Elections
Rules 2017 and the judgment of the Supreme Court dated 13 January 2024.
19.3. The Commission had earlier accepted in 2018 a political
party, Balochistan Awami Party, which had not contested for general seats,
eligible for the allocation of reserved seats. Therefore, PTI-backed returned
candidates joined SIC, with which PTI had an ongoing alliance/ relationship,
within three days of being so notified, in order to become entitled to the
allocation of the reserved seats. In its application, PTI also made the
following contentions:
A primary purpose of
[Articles 51(6)(d) & (e) and 106(3)(c) of] the
Constitution is the establishment of a representative National Assembly and
representative Provincial Assemblies. Denial of reserved seats to PTI would
create an entirely unrepresented National Assembly as well as Provincial
Assemblies that do not reflect the will of the people.
[T]he denial of
reserved seats to SIC/PTI and the allocation of a disproportionate number of
reserved seats to other political parties would deepen the denial of the will
of the people.
As per these contentions and the
arguments made during the hearing, PTI claimed the allocation of the disputed
reserved seats either to SIC or to itself (PTI).
Claim for allocating reserved
seats to SIC or to PTI
20. It
may also be pertinent to mention here that in the course of his arguments, the
learned counsel for SIC also attempted to explain the above circumstances under
which the returned candidates, who according to him were PTI candidates, joined
SIC. However, some honourable members of the Bench reproved him, questioning
how he could make conflicting arguments as he was supposed to plead the case of
SIC, not of PTI. With respect, we say that both SIC and PTI took the same
stance on the peculiar circumstances that led the returned candidates to join
SIC; in no way did they make any conflicting assertions. Both emphasized that
it is the right of the people who had voted for the returned candidates that
their mandate should be reflected in allocating the disputed reserved seats to
SIC or to PTI.
Questions of law
21. On
the above facts and the contentions made by learned counsel for the parties,
the following questions of law fall for determination:
i. What is the consequence of declaring a
political party ineligible to obtain an election symbol under Section 215(5) of
the Elections Act 2017? Does such a declaration affect the political party’s
other constitutional and statutory rights?
ii. Can a candidate
nominated by a political party ineligible to obtain an election symbol be
mentioned as an independent candidate in the list of contesting candidates
(Form 33), and can such a returned candidate be notified as an independent
returned candidate in the Section-98 Notification?
iii. Do Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution refer to
political parties that have contested for and won general seats or to all
enlisted political parties? and
iv. How is the
proportional representation of a political party to be calculated for the
allocation of reserved seats under Articles 51(6)(d) & (e) and 106(3)(c) of
the Constitution?
We shall discuss and decide the above
questions seriatim. However, before doing so, we want to briefly state the
scope of the fundamental right guaranteed by Articles 17(2) and 19 of the
Constitution, as the whole case hinges upon it and the answer of all the above
questions are rooted in it.
Scope of
fundamental right guaranteed by Article 17(2) of the Constitution
22. The provisions of Article 17(2) of the Constitution are
cited here for ease of reference and reading:
Article 17(2) of the Constitution:
Every citizen, not being in the service of
Pakistan, shall have the right to form or be a member of a political party,
subject to any reasonable restrictions imposed by law in the interest of the
sovereignty or integrity of Pakistan, and such law shall provide that where the
Federal Government declares that any political party has been formed or is
operating in a manner prejudicial to the sovereignty or integrity of Pakistan,
the Federal Government shall, within fifteen days of such declaration, refer
the matter to the Supreme Court, whose decision on such reference shall be
final.
A bare reading of the provisions of Article 17(2) of the Constitution
shows that it guarantees to every citizen of Pakistan who is not in the service
of Pakistan, the right to form or be a member of a political party. As per this
Article, any reasonable restrictions can be imposed on this right by law only
in the interest of sovereignty or integrity of Pakistan. This right has been
regarded so important by the constitution makers that the adjudication of the
matter of its restriction on the specified two grounds has been entrusted to
the apex Court of the country—the Supreme Court of Pakistan—and not to any
other Court. The protection of this right is so essential for ensuring
democracy and representative government that its significance cannot be
overstated. Although all Courts and tribunals are mandated to enforce the right
guaranteed by this Article, this Court (the Supreme Court of Pakistan) is the
ultimate guardian of it. Therefore, it is also because of the constitutional
obligation of this Court to protect the right guaranteed by this Article, as
specifically entrusted to it, that we decided to make a broader and
comprehensive judicial inquiry into all the relevant facts and law points
concerning enforcement of the fundamental rights of both the voters and the
political parties.
23. As held by this Court in Nawaz Sharif,[16]
the fundamental rights guaranteed by the Constitution, an organic instrument,
are not capable of precise or permanent definition delineating their meaning
and scope for all times to come. With the passage of time, changes occur in the
political, social and economic conditions of the society, which requires
re-evaluation of their meaning and scope in consonance with the changed
conditions. Therefore, keeping in view the prevailing socio-economic and
politico-cultural values and ideals of the society, the Courts construe the
fundamental rights guaranteed by the Constitution with a progressive, liberal
and dynamic approach. This approach ensures that the fundamental rights remain
a vibrant and effective guarantee of citizens’ rights, liberties and freedoms,
adapting to the evolving needs and aspirations of society. With this approach,
the Courts expound the fundamental rights to give them “life and substance”[17]
that are true to the reality of the changing times.
24. In view of the above principles of interpreting fundamental
rights, this Court has expounded in several cases the scope of the “right to form
or be a member of a political party” guaranteed by Article 17(2) and held that
it includes the right to function and operate as a political party,[18]
the right to participate in and contest an election as a political party,[19]
the right to form the Government and complete the prescribed tenure if the
members of the political party constitute the requisite majority,[20]
the right to contest an election in his individual capacity or as a member of a
political party,[21]
the right to be governed by chosen representatives[22]
and the right to vote.[23]
This bouquet of political fundamental rights ensures a functional and a
workable democracy and a representative government. It is underlined that
‘representation in fact is democracy’.[24]
Therefore, the right guaranteed by Article 17(2) is essential for actualizing
the constitutional objective of establishing an order wherein the State
exercises its powers and authority through the chosen representatives of the
people.[25]
Right to vote
and the freedom of expression guaranteed under Article 19
25. Furthermore, as a form of expression, the right to vote is part of
the fundamental right to freedom of expression guaranteed by Article 19 of the
Constitution,[26]
which is cited here for ease of reference:
Article
19: Every citizen shall have the right to freedom of speech and expression…
subject to any reasonable restrictions imposed by law in the interest of the
glory of Islam or the integrity, security, or defence of Pakistan or any part
thereof, friendly relations with foreign states, public order, decency,
morality, or in relation to contempt of Court, commission of or incitement to
an offence.
The right to freedom of speech and expression is
considered “preservative of all rights”.[27]
The act of voting for a candidate of a political party or an independent
candidate is a form of expression and an inherent concept within the
Constitution, fundamental to the democratic legitimacy and validity of the
legislature. When individuals cast their votes, they express their opinions on
how they believe their society should be governed, who should govern it, and
what policies should be prioritized. This form of expression is crucial because
it encapsulates the will of the electorate, conveying messages about public
preferences.
26. In a democratic context, freedom of expression extends beyond
individual speech to encompass the collective expression of a community’s or nation’s political will through their elected
representatives. In essence, freedom of expression and representativeness are
deeply interlinked, each reinforcing the other. A truly representative
government not only exemplifies the collective expression of its people but
also ensures that this expression influences governance. The right to form
political parties, the right to contest elections and the right to vote are
therefore pivotal extensions of representativeness and freedom of expression,
essential for cultivating a socially just environment.
27. The fundamental rights enshrined in Articles 17(2) and 19 of the
Constitution thus underscore the significance of political participation and
freedom of expression, both of which are essential to the functioning of a
representative democracy. Article 17(2) guarantees the right to form or join
political parties, highlighting the vital role of political participation in
safeguarding democracy, while Article 19 upholds the freedom of expression,
which is integral to the electorate’s ability to influence the formation of
government by expressing their choices through their votes. Together, these Articles
emphasize the importance of electoral integrity and political justice, ensuring
that every citizen’s voice and choice are heard and represented in the
political process.
28. Having so briefly stated the
scope of the rights guaranteed by Articles 17(2) and 19 of the Constitution, we
will next discuss the questions and examine the implications of this right
further.
(i) What is
the consequence of declaring a political party ineligible to obtain an election
symbol under Section 215(5) of the Elections Act 2017? Does such a declaration
affect the political party’s other constitutional and statutory rights?
29. The fundamental right to form a political party guaranteed by
Article 17(2) of the Constitution is regulated by the Elections Act 2017
(“Elections Act”). Section 2(xxviii) of the Elections Act defines a “political
party” to mean an association of citizens or a combination or group of such
associations formed with a view to 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.
Chapter XI of the Elections Act, comprising Sections 200 to 213, contains the
detailed provisions, inter alia, on the subjects of formation, enlistment,
membership, functioning, intra-party elections, sources of funds, and
dissolution of political parties, etc.
30. Section 202 makes it obligatory for the Commission to enlist a
political party if the application for its enlistment is accompanied by (i) a
copy of the constitution of the political party, (ii) the certificate and the
information required to be submitted under Sections 201 and 209, (iii) a copy
of consolidated statement of its accounts under Section 210, (iv) a list of at
least two thousand members with their signatures or thumb impressions along
with copies of their National Identity Cards, and (v) the deposit of two
hundred thousand rupees in favour of the Commission in the Government Treasury
as enlistment fee. A political party which has been refused enlistment by the
Commission can file an appeal before the Supreme Court. This provision aligns
with the constitutional mandate entrusted to the Supreme Court under Article
17(2) of the Constitution as the ultimate guardian of the right guaranteed by
that Article. It is also notable that a political party once enlisted under the
Elections Act cannot be delisted; the Commission’s power to cancel the
enlistment of a political party under subsection (5) of Section 202 relates only
to the political parties enlisted before the commencement of the Elections Act,
i.e., under earlier law. Whereas Section 212 contains the provisions on
the matter of dissolution of political parties, which are similar to those
contained in Article 17(2) of the Constitution.
31. The provisions that are more relevant to the present case are
those contained in Sections 208 and 209, concerning the intra-party elections
of political parties. As per Section 208, the office-bearers of a political
party are to be elected periodically in accordance with the constitution of the
political party, provided that a period, not exceeding five years, intervenes
between any two elections. Once the intra-party elections are conducted, the
political party concerned is to publish the updated list of its central
office-bearers on its website and also to send such list to the Commission.
Similarly, under Section 209, within seven days from completion of its
intra-party elections, a political party is to submit a certificate signed by
an office-bearer authorized by the Party Head, to the Commission to the effect
that the elections were held in accordance with the constitution of the
political party. Such certificate should contain the following information: (a)
the date of the last intra-party elections; (b) the names, designations, and
addresses of office-bearers elected at the Federal, Provincial, and local
levels, wherever applicable; (c) the election results; and (d) a copy of the
political party’s notifications declaring the results of the election. Within
seven days from the receipt of such certificate of a political party, the
Commission is to publish the certificate on its website. It is notable that
under Section 208(5), where a political party fails to conduct intra-party elections
as per the given time frame in its constitution (but not exceeding the
statutory period of five years) despite a notice issued by the Commission to do
so, then the Commission can impose a fine which may extend to two hundred
thousand rupees but not be less than one hundred thousand rupees. While the
consequence of failure to comply with the provisions of Section 209, which
relates to the submission of a certificate containing the specified information
and signed by an office-bearer authorized by the Party Head, to the effect that
the elections were held in accordance with the constitution of the political
party, is provided in Section 215(5).
32. Section 215(5)[28]
of the Elections Act provides that if a political party fails to comply with
the provisions of Section 209 (regarding intra-party elections) or Section 210
(regarding sources of the party’s funds), the Commission may, after affording
it an opportunity of being heard, declare it ineligible to obtain an election
symbol for election to Majlis-e-Shoora (Parliament), Provincial Assembly
or a local government, and shall not allocate an election symbol to such
political party in subsequent elections. The word “may”
in Section 215(5) indicates the discretion of the Commission in making the
declaration, which discretion, like all other discretionary powers vested in
public functionaries, is to be exercised justly, fairly and reasonably,
considering the peculiar facts and circumstances of each case. However, the
consequence of making such a declaration is clearly specified and is not left
to the discretion of the Commission. As stipulated in Section 215(5), the
consequence of making the declaration is that the Commission is not to allocate
an election symbol to such political party in subsequent elections.
Principle of strict construction
of statutes providing penal consequence or curtailing fundamental rights
33. It is a cardinal principle of the construction of statutes
that any provision entailing penal consequence, whether of criminal law[29]
or of civil law,[30]
must be construed strictly. This principle of strict construction of penal
statutes is also called the principle against doubtful penalisation. It
stresses that a person should not be penalised except under clear law and if,
in construing the relevant provisions, there appears any reasonable doubt or
ambiguity, it should be resolved in favour of the person who would be liable to
the penalty. No penalty or penal consequence can be added to the one specified
in law by inference or assumption. Penal actions can only be taken on the basis
of express and clear provisions of law. The act attracting the penal
consequence and the person responsible for it must fairly and squarely fall
within the plain words of the law. Courts are not to strain or stretch the meaning
of the words to bring the act or the subject within the ambit of penal
provisions; in other words, the scope of penal provisions is not to be extended
through liberal construction. Furthermore, if a penal provision is susceptible
to two reasonable constructions, the one that does not extend the penalty is to
be adopted. Any reasonable doubt or ambiguity is to be resolved in favour of
the person who would be liable to the penalty, and the construction that avoids
the penalty is to be adopted.[31]
34. Another
well-established principle of constitutional and statutory construction is that
while the fundamental rights guaranteed in the Constitution are to be construed
progressively and liberally,[32]
provisions in the Constitution or in any law that curtail the fundamental
rights are to be construed restrictively and narrowly.[33]
This principle owes its genesis to the broader principle of strict construction
of statutes encroaching on rights, which applies to all fundamental rights
recognized by common law, whether or not guaranteed in the Constitution. As per
this principle, statutes that encroach on such rights of the subject are also
subject to strict construction. They are to be construed, if possible, to
protect such rights, and if there is any ambiguity, the construction that saves
the right should be adopted.[34]
In a constitutional democracy, laws are solicitous of the individual rights and
liberties of citizens and interfere with them as little as possible in the
public interest. By adopting a liberal and expansive interpretation of such
laws, individual rights and liberties cannot be curtailed more than expressly
provided by the legislature in the public interest. Therefore, laws that
curtail individual rights and liberties, particularly the fundamental rights
guaranteed in the Constitution, are to be construed strictly.[35]
35. These principles of statutory construction guide our
analysis and interpretation of the provisions of Section 215(5) of the
Elections Act. It is unequivocal that Section 215(5) prescribes a penal
consequence for a political party’s failure to comply with the provisions of
Section 209 (regarding intra-party elections) or Section 210 (regarding the
sources of the party’s funds). The specified penalty of non-allocation of an
election symbol curtails the political party’s fundamental right to function
and operate as a political party—a right implicit in the right to form a
political party guaranteed by Article 17(2) of the Constitution.[36]
Therefore, Section 215(5) must be construed strictly. No further penalty or
consequence beyond the specified non-allocation of an election symbol can be
inferred or assumed from Section 215(5). Additionally, no other constitutional
or statutory right of the political party can be denied on the basis of the
non-allocation of an election symbol under this provision. Any interpretation
of Section 215(5) that would impose further penalties beyond the expressly
stipulated contravenes the principle of strict construction of laws that entail
penal consequences or curtail fundamental rights. Thus, the scope of the
penalty provided by Section 215(5) must remain confined to its express terms,
ensuring that no other constitutional or statutory right of the political party
is affected.
Answer to question (i) and its
applicability to PTI
36. In light of the foregoing interpretation, we determine
question (i) in the terms that the sole consequence of declaring a political
party ineligible to obtain an election symbol under Section 215(5) of the
Elections Act for failing to comply with the provisions of Section 209
regarding intra-party elections is the non-allocation of an election symbol to
that party in subsequent elections—nothing more, nothing less. Furthermore,
such a declaration does not affect the political party’s other constitutional
and statutory rights.
37. This was the effect of the Commission’s order dated 22
December 2023 (upheld by this Court vide its order dated 13 January 2024),
declaring PTI ineligible to obtain its election symbol under Section 215(5) of
the Elections Act; other constitutional and statutory rights of PTI to function
and operate as a political party were not thereby affected. With respect, it is
observed that had this Court clarified this legal position in its order dated
13 January 2024, or had the Commission clarified it in its order dated 22
December 2023 or order dated 13 January 2024, the entire confusion regarding
the status of PTI candidates or PTI’s right to reserved seats would not have
occurred.
38. We feel constrained to observe here that we have some doubts about
whether the Commission has 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, particularly when the election programme had already
been announced and the fundamental right of citizens to vote for the political
party of their choice was at stake. Similarly, we have certain reservations
about how the matter of intra-party elections—a matter of internal governance
of party—can trump the fundamental rights of citizens to vote and of political
parties to effectively participate in and contest elections through obtaining a
common symbol for their candidates, guaranteed under Articles 17(2) and 19 of
the Constitution. However, since these questions are sub judice in the review petition filed by PTI against this Court’s
judgment dated 13 January 2024, we abstain from examining and expressing our
definitive view on them. (One of us, Justice Muhammed Ali Mazhar, does not want
to make the observations made in this paragraph because review petition against
this Court’s judgment dated 13 January 2024 is pending. He also wishes to make
clear that nothing in this paragraph is intended to or will impact upon the
hearing of the review petition).
Explanation to Rule 94 of the Elections
Rules 2017 is ultra vires the Elections Act and the Constitution
39. The discussion under this question would, however, be incomplete
without determining the legal status of the Explanation to Rule 94 of the
Election Rules 2017 (“Election Rules”). It is pertinent to mention that the
Election Rules have been made by the Commission in the exercise of its
rule-making power under Section 239 of the Elections Act, which authorises the
Commission to make rules for carrying out the purposes of the Act.
40. Rule 94[37]
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. Its Explanation stipulates that ‘[f]or the purpose
of this rule, the expression “political party” means a political 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. No such exclusion of a
political party, as created by the Explanation to Rule 94, is provided in
Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution, nor is any such
consequence of non-allocation of the election symbol provided in Section 215(5)
or any other provision of the Elections Act. In effect, it has introduced an
additional penal consequence of declaring a political party ineligible to
obtain an election symbol under Section 215(5) of the Elections Act, and it has
also infringed 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.
This Explanation has thus clearly gone beyond and against the provisions of the
Elections Act and the Constitution.
41. It is an established principle of law that rules made under the
rule-making authority conferred by an Act (“parent statute”) can neither
enlarge nor go beyond the scope of the parent statute, nor can they override or
conflict with its provisions. If the rules are repugnant to or inconsistent
with the provisions of the parent statute, they are ultra vires and
invalid. The rule-making authority is conferred to give effect to the provisions
of the parent statute, not to neutralise or contradict them. The primary
purpose of the rules is to provide procedural details for carrying out the
purposes of the parent statute. They cannot militate against the substantive
provisions of the parent statute.[38]
Moreover, just as a provision in the parent statute that is inconsistent with
any provision of the Constitution is ultra
vires the Constitution and thus invalid,[39]
so too are the rules made under its authority: the rules that are inconsistent
with any provision of the Constitution are also ultra vires the Constitution and thus invalid. What cannot be done
directly in the parent statute through primary legislation cannot be done
indirectly in the rules through delegated legislation.
42. In view of the above, the
Explanation to Rule 94 of the Election Rules, being beyond the scope of Section
215(5) of the Elections Act and inconsistent with the provisions of Articles
51(6)(d) & (e) and 106(3)(c) of the Constitution, is declared ultra vires the Elections Act and the
Constitution, thus void and invalid.
(ii) Can a
candidate nominated by a political party ineligible to obtain an election
symbol be mentioned as an independent candidate in the list of contesting
candidates (Form-33), and can such a returned candidate be notified as an
independent returned candidate in the Section-98 Notification?
43. The answer to question (i)
above, has made it easier to address this question. The only point that
requires some discussion here is whether a political party has a constitutional
and/or statutory right to nominate its candidates for an election to Majlis-e-Shoora
(Parliament), Provincial Assembly or a local government. Fortunately, we need
not grapple much with this point as it has already been discussed at some length
and decided authoritatively by the Full Court Benches of this Court in the two
cases of Benazir Bhutto decided in
1988.[40]
Instead of burdening this judgment with extracts from those cases, we find it
appropriate to state summarily what was decided therein on the point under
consideration, with which we respectfully agree.
Right to
contest elections as a political party through its nominated candidates is a
fundamental right under Article 17(2) of the Constitution
44. Article 17(2) of the
Constitution guarantees the right to form or be a member of a political party.
Because the formation of a political party necessarily implies the carrying on
of all its activities, the right to form a political party extends to its
functioning and operation. The functioning is implicit in the formation of a
political party. Without the right to its functioning, the right to form a
political party would be meaningless and of no avail. To participate in an
election to Parliament or a Provincial Assembly and to nominate or put up
candidates at any such election are the principal activities (functions) of a
political party. Depriving a political party of these activities destroys the
political existence of the party and is tantamount to its political
extermination and virtual dissolution, which cannot be done otherwise than by
the procedure and on the grounds provided in Article 17(2) of the Constitution.
The right to participate in and contest an election as a political party is
included in the right to form or be a member of a political party. Any
provision of election law that fails to recognize the rights of political
parties to participate in the elections is, therefore, ultra vires Article 17(2) of the Constitution.
45. The Nawaz Sharif case[41]
decided in 1993 by a Full Court Bench of this Court not only endorsed the above
scope of the right guaranteed by Article 17(2) of the Constitution but also
advanced it further. The Court held that the right to form or be a member of a
political party guaranteed by Article 17(2) includes not only the right to
participate in and contest elections as a political party, as held in the
Benazir Bhutto cases, but also the right to form the Government and complete
the prescribed tenure if the members of the political party constitute the
requisite majority.
46.
Being in complete agreement with the above three decisions of the Full Court
Benches of this Court on the scope of Article 17(2), we hold that the right to
participate in and contest elections as a political party through its nominated
candidates is a fundamental right guaranteed by Article 17(2) of the
Constitution. The various sections of the Elections Act, including Sections 66
and 67, merely serve to give effect to this right as machinery provisions. This
right is not, nor can it be, extinguished by any provision of the Elections
Act, including Section 215(5) thereof. Depriving a political party of
participating in and contesting elections through its nominated candidates, it
is reiterated, destroys the political existence of the party and is tantamount
to its political extermination and virtual dissolution, which cannot be done
except by the procedure and on the grounds provided in Article 17(2) of the
Constitution. Similar would be the position if the candidates nominated by a
political party are denied the status of being the candidates of that political
party and are mentioned as independent candidates in the list of contesting
candidates (Form-33), or such returned candidates are notified as independent
returned candidates in the Section-98 Notification. Such actions of the
Returning Officers and the Commission would also be ultra vires Article 17(2) of the Constitution, as they effectively
nullify the party’s right to participate in and contest elections.
The order of
the Commission, dated 2 February 2024, made on the application of Mr. Salman
Akram Raja (a PTI candidate) was both unconstitutional and unlawful.
47. As the Commission’s order dated
2 February 2024, passed on the application of Mr. Salman Akram Raja (“Mr.
Raja”), a PTI candidate, pertains to question (ii) under discussion, we deem it
necessary to examine the legality of that order alongside answering this
question, in order to ensure a comprehensive understanding of the matter. As
noted above, when the Returning Officers published the lists of contesting
candidates (Form-33), PTI candidates were mentioned therein as independent
candidates. Mr. Raja, one of such candidates, challenged this entry in the list
of contesting candidates (Form-33) before the Commission. However, the
Commission, by its order dated 2 February 2024, rejected his challenge and
declared him an independent candidate. In its order, the Commission reasoned:
Notwithstanding, the affiliation of the
petitioner with PTI and alleged party ticket including entries of party
affiliation in the nomination papers of the petitioner, he cannot be treated as
nominee of PTI nor his party (PTI) can be reflected in column 5 of Form 33 in absence
of party symbol.
…….
The petitioner has been allotted symbol
from the chart available for independent candidates as the party to which
he claims affiliation has not been allocated Election Symbol by the
Commission. Allowing any entry in absence of party symbol in column 5 of
Form 33 and entry [of] applicant’s name as Candidate of PTI will contradict the
symbol and identity of Party as the petitioner is declared as an independent
candidate.
(Emphasis supplied)
To further support
its decision, the Commission also relied upon the following observation of this
Court made in its order dated 13 January 2024:
Surprisingly, no declaration was sought, nor
given, that intra party elections were held in PTI, let alone that the same
were held in accordance with the law. If it had been established that elections
had been held then ECP would have to justify if any legal benefit to such a
political party was being withheld, but if intra party elections were not
held the benefits accruing pursuant to the holding of elections could not be
claimed.
(Emphasis supplied)
From the cited extracts of the Commission’s order, it appears that the
Commission rejected Mr. Raja’s claim primarily because he had been allotted a
symbol from the chart of symbols prescribed for independent candidates, and the
party (PTI) whose candidature he sought to be mentioned in Form-33 had not been
allocated an election symbol. The Commission’s reliance on the cited
observation of this Court indicates that it understood a political party’s
capacity to nominate candidates for an election as one of “the benefits
accruing pursuant to the holding of [intra-party] elections.”
48. In
defending the Commission’s order and the Returning Officers’ act of mentioning
PTI candidates as independent candidates in Form-33, the learned counsel for
the Commission took pains to explain the provisions of Section 67[42]
of the Elections Act. According to him, Section 67 classifies candidates for
symbol allocation into two categories: (i) candidates nominated by a political
party that has been allocated a symbol by the Commission under Chapter XII, who
are allotted the party symbol under subsection (2) of Section 67, and (ii)
candidates not nominated by any political party, who are treated as independent
candidates and are allotted one of the symbols not allocated to any political
party. He emphasised that Section 67 does not recognise any third category of
candidates, such as candidates who are nominated by a political party (like
PTI) that has not been allocated a symbol by the Commission under Chapter XII
of the Elections Act.
49. We have given careful consideration to his arguments. We find that
his focus has been solely on the express words of subsections (2) of Section
67, while overlooking its necessary implication. This necessary implication
becomes clear when we invert the statement made in subsection (2) of Section
67. This subsection states that “[a] candidate nominated by a political party
at an election in any constituency shall be allotted the symbol allocated by
the Commission to that political party under the provisions of Chapter XII and
no other symbol.” By inverting this statement, we find as a necessary
implication that a candidate nominated by a political party that has not been
allocated a symbol by the Commission shall not be allotted the symbol declined
by the Commission to that political party under Chapter XII, but rather any
other symbol. Since any other symbol is allotted to candidates under subsection
(3) of Section 67, a candidate nominated by a political party (such as PTI)
that has not been allocated a symbol by the Commission is to be allotted, under
that sub-section, one of the symbols not allocated to any political party.
However, the allocation of a symbol under subsection (3) does not alter the
candidate’s status as a nominee of the political party, which is determined
under Section 66 on the basis of his declaration and the party certificate
(party ticket) issued in his favour.
50. The construction of subsections (2) and (3) of Section 67 proposed
by the learned counsel for the Commission, if accepted, would extinguish the
fundamental right guaranteed by Article 17(2) of the Constitution to
participate in and contest elections as a political party through its nominated
candidates. As held above, the various sections of the Elections Act, including
Sections 66 and 67, merely serve to give effect to this fundamental right as
machinery provisions, which cannot be extinguished by any provision of the
Elections Act, including Section 215(5) thereof.
51. In view of the above, the Commission’s order dated 2 February 2024
and the Returning Officers’ act of mentioning PTI candidates as independent
candidates in Form-33 were both unconstitutional and unlawful, and they are
hereby declared as such. It would also be appropriate to clarify that the
Commission’s reliance on the cited observation of this Court made in paragraph
11[43]
of its order dated 13 January 2024 was misconceived and misplaced, as that
observation pertained to Section 215(5) and not to Sections 66 and 67 of the
Elections Act.
Difference
between “interpretation” and “construction” of statutes
52. To explain how we have
determined and declared the above legal position, despite it not being
explicitly stated in subsections (2) and (3) of Section 67, as argued by the
learned counsel for the Commission, we may underline a subtle difference
between “interpretation” and “construction” of statutes. ‘Strictly speaking,
construction and interpretation are not the same’, as Crawford wrote and this
Court approvingly cited it in Haider Zaidi,[44]
‘although the two terms are often used interchangeably. Construction, however,
to be technically correct, is the drawing of conclusions with respect to
subjects that are beyond the direct expression of the text, from elements known
and given in the text, while interpretation is the process of discovering the
true meaning of the language used. … The process to be used in any given case
will depend upon the nature of the problem presented. And, as is apparent, both
processes may be used in seeking the legislative intent in a given statute. If
the legislative intent is not clear after the completion of interpretation,
then the Court will proceed to subject the statute to construction.’[45]
We have thus drawn the above conclusion by construction from the “elements
known and given in the text” of the provisions of Sections 66, 67 and 215(5) of
the Elections Act as a necessary implication thereof.
53. It may however be clarified, as Crawford also did, that since for
most practical purposes it is sufficient to designate the whole process of
ascertaining the legislative intent as either interpretation or construction,
the said distinction between the two processes has little importance so far as
the Courts are concerned and is usually relegated to the realm of academic
discussion. But, as Crawford emphasised and so we do for our present purpose,
‘by breaking the process of finding the legislative intent into these two
processes whose characters depend upon whether the Court, strictly speaking,
interprets or constructs the legislative enactment at hand, some light is shed upon
how the Courts exercise the judicial function of ascertaining the legislative
intention.’[46]
Answer to
question (ii) and its applicability to PTI
54. In view of the above, we answer
question (ii) as follows: 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.
55. Therefore, PTI’s nominated
candidates were wrongly shown independent candidates in the list of contesting
candidates (Form 33) by the Returning Officers and were also wrongly notified
as independent returned candidates in the Section-98 Notification by the
Commission.
Validity of
party tickets issued by Mr. Gohar Ali Khan as Chairman PTI
56. Before parting with this part
of the judgment, it is necessary to address an ancillary point stated by the
Commission in its order dated 2 February 2024 in rejecting Mr. Raja’s claim.
The Commission maintained that since the election of Mr. Gohar Ali Khan as
Chairman of PTI had not been accepted by the Commission, he could not have
issued the party ticket to Mr. Raja. We find that the Commission failed to
recognise that its order dated 22 December 2023 regarding the intra-party
elections of PTI was not in force from 26 December 2023 (when the Peshawar High
Court suspended the Commission’s order) to 13 January 2024 (when this Court
restored the Commission’s order). During this period, Mr. Gohar Ali Khan was
holding the office of Chairman of PTI and had, therefore, validly issued party
tickets to PTI candidates, including Mr. Raja.
57. We may also underline here
that, notwithstanding a political party’s failure to comply with the provisions
of Section 209 of the Elections Act relating to its intra-party elections, the
political party remains an enlisted political party, fully functional for the
purposes of its formation, i.e., ‘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.’[47]
The only consequence of not complying with the said provisions of the Elections
Act, as aforementioned, is that such a political party is not to be allocated
an election symbol. 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 and running its affairs. We all
know that juristic persons act through natural persons. An enlisted political
party is a juristic person, and like other juristic persons, it acts through
natural persons. 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 approbating and reprobating one and the same fact.
Therefore, after the intra-party elections (which were not later accepted by
the Commission), Mr. Gohar Ali Khan had assumed at least de facto charge of PTI’s functions and affairs as its Chairman.
Consequently, the acts performed by him on behalf of PTI before 13 January
2024, when this Court restored the Commission’s order dated 22 December 2023
declining to accept the intra-party elections, were fully valid and effective.
58. It is further clarified that
when the office-bearers of a political party are elected under Section 208 of
the Elections Act, in accordance with the party’s constitution, and a
certificate to that effect is submitted to the Commission under Section 209,
the newly elected office-bearers de facto
assume the functions of the party until the Commission accepts or rejects
the elections. Upon acceptance, they also assume the functions of the party de jure. In the case of rejection of the
intra-party elections, the previous office-bearers are reinstated, for no
political party, as held above, can exist without either de facto or de jure office-bearers to perform its functions and
manage its affairs. In this regard, the clarification dated 14 September 2024,
passed by us on an application of the Commission, shall also be read as part of
this judgment and is reproduced hereunder for the completion of the record:
Through CMA 7540/2024, and in terms [para 10]
of the short order dated 12.07.2024 whereby these appeals were decided by
majority (“Short Order”) the Election Commission of Pakistan (“Commission”)
purports to seek guidance on the point that “[i]n absence of a valid
organizational structure of Pakistan Tehreek-i-Insaf (PTI), who will confirm
the political affiliation of the returned candidates (MNAs and MPAs) on behalf
of PTI, who have filed their statements in light of the Supreme Court Order
[dated 12 July 2024].” We may note that other than a copy of the Short Order
the application is bereft of any other documentation.
2. In reply to the above application, the PTI
has filed CMA 8139/2024, to which have been annexed a number of documents,
including correspondence between the PTI and the Commission. We have considered
the material that has been placed before us.
3. By way of brief recapitulation, in
paragraphs 4 and 5 of the Short Order it has been categorically declared that
the 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 that for the
purposes, and within the meaning, of paragraphs (d) and (e) of clause (6) of
Article 51 and paragraph (c) of clause (3) of Article 106 of the Constitution
of the Islamic Republic of Pakistan, PTI 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 as provided
in that Order. These paragraphs, and the preceding paragraph 3 of the Short
Order, sound on the constitutional plane, being the proper interpretation and
understanding of the relevant constitutional provisions. The other paragraphs
of the Short Order, including in particular paragraphs 8 and 10, are
consequential upon what has been held and declared in the paragraphs just
noted, and flow and emanate from, and give effect to, constitutional
conclusions. All of these points will be explicated in the detailed reasons for
the decision of the majority (i.e., the Short Order), which is the
binding judgment of the Court.
4. Turning now to the specific clarification
purportedly sought, the PTI in its reply has annexed a number of notices issued
by the Commission to the PTI through Barrister Gohar Ali Khan, in which it has
itself identified the latter as the Chairman of PTI. Furthermore, the
certifications required to be issued by a political party (here the PTI) and
filed with the Commission in terms of paragraphs 8 and 10 of the Short Order
have, as per the record placed before us in relation to the returned candidates
(now respectively MNAs and MPAs) in the National and the Sindh, Punjab and
Khyber Pakhtunkhwa Provincial Assemblies, been issued under the signatures of Barrister
Gohar Ali Khan and Mr. Omar Ayub Khan, who are identified therein as being,
respectively, the Chairman and Secretary General of the PTI. These
certifications are dated 18.07.2024, 24.07.2024 and 25.07.2024 and list, in
each case, the particulars of the relevant returned candidate (now MNA or MPA
as the case may be) and in particular the dates on which the declaration
required of the candidate (again, in terms of paragraphs 8 and 10 of the Short
Order) was filed with the Commission. These dates obviously all precede the
respective dates of certification.
5. Putting together the record placed before us,
and considering the same in the light of the Short Order, leaves in little
doubt that the clarification sought by the Commission in terms of the CMA 7540/2024
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.
Having itself recognized 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. This position was not only accepted and relied upon by us (eight Judges)
but also by our three learned colleagues in minority (Hon’ble the Chief
Justice, Justice Yahya Afridi and Justice Jamal Khan Mandokhail). Their
lordship appear to have also accepted the validity of the party certificates
(party tickets) issued by Barrister Gohar Ali Khan and thus his capacity to act
for PTI as its Chairman. Furthermore, having itself issued notices to the PTI
through Barrister Gohar Ali Khan as its Chairman, the
Commission gave recognition to both the party and the office holder. That
sufficed absolutely for purposes of the Short Order. 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 (as the Commission now in effect does through CMA 7540/2024)
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.
6. But there is
another, and more fundamental, aspect that must also be alluded to. It was
categorically declared in paragraph 8 of the Short Order that on filing the
requisite statement and its confirmation by the political party concerned, the
seat secured by such candidate shall be forthwith 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 in terms of paragraph 8 (read with paragraph 10) of the Short Order
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.
7. With the above
clarifications, the present application is disposed of. Office shall dispatch a
copy of this order to the respective parties.
We may underline here that, as the
Commission sought clarification of our short order dated 12 July 2024 in order
to give effect to it, in terms of para 10 thereof, there was no legal
requirement, nor did we find it necessary, to hear the parties before
clarifying our own order on the point regarding which the Commission was
unclear. Thus, we provided the above clarification without issuing notice to,
or hearing, the parties on the Commission’s application.
(iii) Do
Articles 51(6)(d) & (e) and 106(3)(c) of the
Constitution refer to political parties that have contested for and won general
seats or to all enlisted political parties?
59. This question was much debated
during the arguments presented by the learned counsel for the parties. It
arises from their two rival contentions. The learned counsel for SIC contended
that Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution refer to all
enlisted political parties that have “secured” general seats, either directly
through their nominated candidates or through the joining of independent
returned candidates. Conversely, the learned counsel for the Commission and
other respondents argued that Articles 51(6)(d) &
(e) and 106(3)(c) of the Constitution refer only to those political parties
that have contested and won one or more general seats directly through their
nominated candidates.
60. The provisions of Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution are
identical in their wording; the only difference is in their application.
Article 51(6)(d) & (e) relates and applies to the
seats reserved for women and non-Muslims in the National Assembly, while
Article 106(3)(c) relates and applies to such seats in the Provincial
Assemblies. Therefore, we shall discuss and determine the meaning of the provisions
of Article 51(6)(d) & (e), which shall also apply
mutatis mutandis to Article 106(3)(c) of the Constitution. The provisions of
Articles 51(6)(d) & (e), along with other relevant
clauses of the same Article, are reproduced here for reading and reference:
51. (1) There shall
be three hundred and thirty-six seats
for members in the National Assembly, including seats reserved for women and
non-Muslims.
(2) …….
(3) The seats in the National Assembly
referred to in clause (1), except the seats mentioned in clause (4), shall be
allocated to each Province and the Federal Capital as under:--
|
|
General
Seats |
Women
Seats |
Total
Seats |
|
Balochistan |
16 |
4 |
20 |
|
Khyber Pakhtunkhwa |
45 |
10 |
55 |
|
Punjab |
141 |
32 |
173 |
|
Sindh |
61 |
14 |
75 |
|
Federal Capital |
3 |
- |
3 |
|
TOTAL |
266 |
60 |
326 |
(3A)……………..
(4) In addition to the number of seats
referred to in clause (3), there shall be, in the National Assembly, ten seats reserved for non-Muslims.
(5) …….
(6) For the purpose of election to the
National Assembly,--
(a) …….
(b) each Province shall be a single constituency for all seats
reserved for women which are allocated to the respective Provinces under clause
(3);
(c) the constituency for all seats reserved for non-Muslims
shall be the whole country;
(d) members to the seats reserved for women which are allocated
to a Province under clause (3) shall be elected in accordance with law through
proportional representation system of political parties’ lists of candidates on
the basis of total number of general seats secured by each political
party from the Province concerned in the National Assembly:
Provided
that for the purpose of this paragraph the total number of general seats won
by a political party shall include the independent returned candidate or
candidates who may duly join such political party within three days of the
publication in the official Gazette of the names of the returned candidates;
and
(e) members to the seats reserved for non-Muslims shall be
elected in accordance with law through proportional representation system of
political parties’ lists of candidates on the basis of total number of general
seats won by each political
party in the National Assembly:
Provided
that for the purpose of this paragraph the total number of general seats won by a political party shall
include the independent returned candidate or candidates who may duly join such
political party within three days of the publication in the official Gazette of
the names of the returned candidates.
(Emphasis added)
A plain, literal
reading of the above provisions of Article 51 of the Constitution shows that
there are three hundred and thirty-six (336) seats for members in the National
Assembly, including sixty (60) seats reserved for women and ten (10) for
non-Muslims. Each Province is a single and separate constituency for all seats
reserved for women allocated to that Province in the National Assembly, while
the constituency for all seats reserved for non-Muslims is the whole country.
Members for both the seats reserved for women and non-Muslims are elected in
accordance with the law through a proportional representation system of
political parties from the lists of their candidates. However, because of the
said difference in constituencies, members to the seats reserved for women are
elected on the basis of the total number of general seats secured by each
political party in the National Assembly from the Province concerned, while
members to the seats reserved for non-Muslims are elected on the basis of the
total number of general seats won by each political party in the whole National
Assembly irrespective of the Province from which it wins such general seats.
The total number of general seats won by a political party, for the purpose of
determining its share in the proportional representation system, includes
independent returned candidate(s) who may duly join such political party within
three days of the publication of the names of the returned candidates in the
official Gazette.
61. In support of his contention,
the learned counsel for SIC argued that the proviso to Article 51(6)(d), which allows independent returned candidates to join a
political party, makes it possible for a political party that has not contested
and won any general seats directly through its nominated candidates to “secure”
some general seats from the Province concerned through the joining of
independent returned candidates. He emphasised the use of the word “secured” in
Article 51(6)(d) rather than the word “won”.
62. We have observed that the main
provisions of paragraph (e) of Article 51(6) and the proviso thereof, which
pertains to seats reserved for non-Muslims, both use the word “won” instead of
“secured”. This paragraph is to be interpreted in conjunction with paragraph
(d) of Article 51(6), which relates to seats reserved for women, as no argument
was presented to us from any of the learned counsel for the parties suggesting
that paragraph (e) should be interpreted differently from paragraph (d). Nor do
we find any reason or logic to interpret them differently. The only difference
between them, as noted above, is with regard to the constituencies: for the
election of members to seats reserved for women, each Province is a single and
separate constituency, while for the election of members to seats reserved for
non-Muslims, the whole country is the constituency.
Furthermore, the term “won” is used in the provisos to both paragraphs (d) and
(e) of Article 51(6). Considering both these closely related provisions
conjunctively and harmoniously, we find that the words “secured” and “won” have
been used interchangeably. Thus, nothing turns on the use of the word “secured”
in paragraph (d) of Article 51(6).
Presumption that same words used
in a statute carry same meaning and different words different meanings, is not absolute.
63.
Although it is reasonable to presume that the same meaning is implied by the
use of the same word in every part of a statute or a section thereof and that a
change of word denotes a change in meaning, the presumption is neither absolute
nor determinative in all cases. The context takes precedence over this
presumption in ascertaining the meaning of words used in a statute, as even the
statutory definitions of the words and expressions are subject to this
consideration. Therefore, it is quite possible that the same word may be used
in different meanings in a statute or in a section of the statute, or,
conversely, different words may be used for the same meaning. The causes for
this may be various, as pointed out by Maxwell and Bennion, including that the
statute is a consolidating enactment where the words are derived from two or
more earlier enactments, or the statute is compiled from different sources, or
the statute is the product of many minds jointly, or the statute undergoes
alterations and additions from various hands in the process of its enactment in
the Legislature, etc.[48]
Words
“secured” and “won” carry the same meaning in paragraph (d) of Article 51(6)
and have been used interchangeably in its main provisions and proviso.
64. We
find that a similar circumstance might have caused the use of different words
in the main provisions of Article 51(6)(d) and the
proviso thereto for the same meaning—the word “secured” in the main provisions
of paragraph (d) of Article 51(6) and the word “won” in the proviso
thereto—either because both have been compiled from different sources or
because different minds produced each of them. The legislative intention to
mean “won” by both expressions is explicitly evident from the use of the word
“won” both in the main provisions of the closely related paragraph (e) of
Article 51(6) as well as in the proviso thereto. Even the drafter of the
proviso to paragraph (d) of Article 51(6) appears to have assumed that the word
“won” had been used in the main provisions, as he referred to them as such in
the proviso. Therefore, it can be concluded with reasonable certainty that the
words “secured” and “won” carry the same meaning in paragraph (d) of Article
51(6) and have been used interchangeably in its main provisions and proviso.
65. Once we have concluded that the words “secured” and “won”
carry the same meaning in paragraph (d) of Article 51(6) and have been used
interchangeably in its main provisions and proviso, the word “won” being
specific and clearer than the word “secured” must be our guide in construing
the provisions of the said Article. Because when a statute, or any other
instrument, uses two different words for the same meaning and any ambiguity
arises as to the meaning of one of those words, the word which is specific and
clearer should guide the interpretation of the general and obscure word, not
vice versa. So read, the main provisions of paragraph (d) of Article 51(6)
clearly refer to political parties that have “won” general seats in the
National Assembly from the Province concerned. The consequential point, which
hardly requires extensive supporting arguments, emerges inevitably that
political parties win general seats by contesting for such seats through their
nominated candidates.
66. Learned counsel for SIC did not dispute that political parties
win general seats by contesting for such seats through their nominated
candidates. His argument was that the proviso equates a political party that
secures general seats by the joining of independent returned candidates with
one that wins such seats directly through its nominated candidates as mentioned
in the main provisions of paragraph (d) of Article 51(d). We are not impressed
by this argument as it misconceives the subject and object of the proviso.
The subject and object of the
proviso to Article 51(6)(d)
67. The subject and focus of the proviso, as we understand it,
is on the “general seats” i.e.,
“general seats won (secured) by a political party”, and not on the political party winning (securing) such
seats. Its object is to prescribe how the “total number of general seats won
(secured) by a political party” is to be determined for the purpose of the
paragraph, not to define or explain political parties for the purpose of the
paragraph. Had the proviso stated that, for the purpose of this paragraph, the
political party winning general seats shall include a political party securing
general seats by the joining of independent returned candidates, the argument
would have had some weight. But the language of the proviso is not to this
effect. The proviso does not in any way extend or explain the meaning of the
expression “political party” as used in the main provisions of the paragraph.
The proviso to Article 51(6)(d) is not a true proviso
68. A true proviso, as is well established, serves as an exception
to the main provisions to which it is added. It excepts
a particular case from the rule stated in the main provisions by limiting or
qualifying the applicability of the main provisions. Its effect is generally
described as being that, but for the proviso, the main provisions would have
included the subject matter of the proviso.[49]
However, since it is not the form but the substance that matters, the clear
language of both the main provisions and the proviso may establish, as held by
this Court in Hamdard Dawakhana,[50]
that the proviso is not a limiting or qualifying clause of the main provisions
but is, in itself, a substantive provision. Therefore, the best principle is
that irrespective of the label, the contents of the main provisions and the
proviso are to be read and construed together to ascertain the intention of the
Legislature.
69. For determining the true character of the proviso presently
under consideration, we find the Privy Council’s case of Atwill[51]
very enlightening. In that case, their Lordships of the Privy Council
overturned the decision of the High Court of Australia, which had treated the
proviso in its classic meaning, i.e., limiting or qualifying what
precedes it. Their Lordships of the Privy Council did not agree and remarked:
While in many cases
that is the function of a proviso, it is the substance
and content of the enactment, not its form, which has to be considered, and
that which is expressed to be a proviso may itself add to and not merely limit
or qualify that which precedes it.
……
In a strict sense the
use of the words “Provided that” in Section 102(a) may also be disregarded as
inapt. The meaning of that provision and the proviso would be the same if
instead of the words “Provided that” there had appeared the word “and” … and to
ascertain the true effect of the provision, the second part, that is to say,
the proviso, is complementary and necessary in order
to ascertain the full intention of the Legislature.
To strengthen their opinion, their
Lordships cited the following observation of Lord Loreburn, L.C., made in the
case of Taff Vale Railway Company: [52]
But it is also true that the latter half of it,
though in form a proviso, is in substance a fresh enactment, adding to and not
merely qualifying that which goes before.
Their Lordships also cited extensively similar observations made by
Viscount Maugham and Lord Wright in the case of Jennings,[53]
on determining the true meaning of a proviso.
70. We
find that the observations made by their Lordships of the Privy Council in Atwill
fully apply to the proviso presently under consideration. In our opinion, the
meaning of the main provisions of paragraph (d) of Article 51(6) and the
proviso thereto would be the same if instead of the words “Provided that”,
there had appeared the word “and”. In our considered opinion, to determine the
true effect of the main provisions as per the intention of the Legislature, the
second part, i.e., the proviso, is to be read
as complementary to, not limiting or qualifying, the first part, i.e.,
the main provisions. This approach is also consistent with the principle stated
above that irrespective of the label, the contents of
the main provisions and the proviso are to be read and construed together to
ascertain the intention of the Legislature.
71. We
have determined above that the main provisions of paragraph (d) of Article
51(6) refer to political parties that have won general seats in the National
Assembly from the Province concerned through their nominated candidates. The
proviso stipulates that for the purpose of this paragraph, the total number of
general seats won by a political party shall include any independent returned
candidate or candidates who may duly join such political party. Without the
proviso, the general seats won by independent returned candidates could not be
considered as seats won by a political party. Therefore, the proviso, in the
words of Lord Loreburn, ‘is in substance a fresh enactment, adding to and not
merely [limiting or] qualifying that which goes before’ in the main provisions.
Since the proviso does not except anything from the main provisions of
paragraph (d) of Article 51(6) by limiting or qualifying them but rather adds
to them, it is not a true proviso but a substantive provision that enacts a
matter which would not otherwise have been covered by the main provisions of
the paragraph.
72. However, the latter part of the proviso is, in the true sense, a
proviso as it qualifies that which goes before, i.e., including the
seats of independent returned candidates in the seats won by the political
party to which they join, for the purpose of the paragraph. According to this
part, for the joining to have the stipulated effect, it must occur within three
days of the publication of the names of the returned candidates in the official
Gazette. It thus excludes any joining of independent returned candidates made
beyond that period from having effect for the purpose of the paragraph.
The effect of the use of the word “such”
with “political party” in the latter part of the proviso
73. It is also a general rule of literal construction of statutes that
‘a qualifying or relative word, phrase, or clause, such as “which”, “said” and
“such”, is to be construed as applying to the word, phrase or clause next
preceding, or as is frequently stated, to the next preceding antecedent, and
not as extending to or including others more remote, unless a contrary
intention appears.’[54]
74. The latter part of the proviso uses the qualifying term “such
political party”, to which the independent returned candidate or candidates may
duly join. When we apply the above general rule to this qualifying term, it
becomes evident that it refers to the term “a political party” next preceding, where the noun “political party” has been used to
denote a political party that has won general seats. It thus inevitably follows
that for the purpose of paragraph (d) of Article 51(6) and within the scope of
the proviso, the independent returned candidate or candidates may duly join, or
be allowed to join, only such a political party that has won one or more
general seats through its nominated candidates in the National Assembly from
the Province concerned.
Harmonious reading of Article 51(6(d) with
Article 63A(2)
75. A constitution, as defined by Cooley, is ‘the fundamental law of a
state, containing the principles upon which the government is founded,
regulating the division of the sovereign powers, and directing to what persons
each of these powers is to be confined, and the manner in which it is to be
exercised.’[55]
Therefore, it is a fundamental principle of constitutional construction, well
entrenched in our constitutional jurisprudence, that a constitution must be
construed as an organic whole, harmonising its various parts, particularly
those closely interlinked, and trying to give due effect to all of them, so as
to make it an effective and efficacious instrument for the smooth and good
governance of the state—one of the ultimate objectives sought to be achieved by
it.[56]
76. In view of this principle of constitutional construction, the
learned Attorney-General for Pakistan drew our attention to the provisions of
clause (2) of Article 63A, which defines a member of a Parliamentary Party and
also sheds light on how a political party constitutes a Parliamentary Party.
Relying upon these provisions of Article 63A, he argued that only a political
party whose nominated candidates become members of a House constitutes a
Parliamentary Party. Therefore, he contended, the same meaning ought to be
given to the expression ‘political party’ in clause (d) of Article 51(6), to
harmonise both provisions with each other.
77. We have given anxious consideration to his contention and
found it very persuasive and harmonious with the view which we are inclined to
take on the meaning of the term “political party” used in Article 51(6)(d). The provisions of clause (2) of Article 63A are
reproduced here for ready reference:
(2) A member of a
House shall be deemed to be a member of a Parliamentary Party if he, having
been elected as a candidate or nominee of a political party which constitutes
the Parliamentary Party in the House or, having been elected otherwise than as
a candidate or nominee of a political party, has become a member of such
Parliamentary Party after such election by means of a declaration in writing.
A bare reading of the above provisions
shows that a member of a House becomes a member of a Parliamentary Party in two
cases: (i) if he has been elected as a candidate or nominee of a political
party which constitutes the Parliamentary Party, he automatically becomes a
member of such Parliamentary Party, or (ii) if he, having been elected as an
independent candidate (i.e., otherwise than as a candidate or nominee of
a political party), joins such Parliamentary Party by means of a declaration in
writing.
78. The qualifying term “such Parliamentary Party”, as
discussed above, refers to the term “Parliamentary Party” next preceding, where
the noun “Parliamentary Party” has been used to denote a political party whose
candidate or nominee has been elected as a member of a House. It is thus
evident that in the first case, one action of becoming a member of a House as a
candidate or nominee of a political party produces two results: (i) it makes a
political party, whose candidate or nominee is elected as a member of a House,
a Parliamentary Party, and (ii) it makes that member of a House, a member of
such Parliamentary Party. A member of a House elected as an independent
candidate can become a member of a Parliamentary Party by joining only such a
political party that constitutes a Parliamentary Party, not a political party
that does not constitute a Parliamentary Party. Notwithstanding joining a
political party of latter type, a member of a House shall not become a member
of a Parliamentary Party and shall remain an independent member of a House for
the purpose of all parliamentary proceedings.
Answer to question (iii) and its
applicability to SIC and PTI
79. Thus, both the standalone reading of the provisions of
Articles 51(6)(d) and (e), as well as their conjunctive and harmonious reading
with the provisions of Article 63A(2), lead to one and only irresistible
conclusion in terms of which this question is answered: Article 51(6)(d) of the
Constitution refers to political parties that have contested for and won one or
more general seats in the National Assembly from the Province concerned, not to
all enlisted political parties. Similarly, Article 51(6)(e)
of the Constitution refers to political parties that have contested for and won
one or more general seats in the National Assembly from the whole country, i.e.,
from any of the Provinces or the Federal Capital.
80. Since SIC has not contested for and won one or more general
seats in the National Assembly from the Provinces concerned or from anywhere in
the country, it is not such a political party to which any of the independent
returned candidates can join, for the purposes of paragraphs (d) and (e) of
Article 51(6) of the Constitution. Therefore, the act of joining it by some
returned candidates has not produced any result, and the legal status of such
returned candidates remains the same as it was before such an act. As SIC has
not won general seats, it is not entitled to allocation of the disputed
reserved seats. However, as shall be mentioned later in detail, it has been
determined by eleven members of the Bench with varying figures that PTI has
contested for and won some general seats in the National Assembly from the
Provinces concerned, and it is a political party entitled to allocation of the
disputed reserved seats under paragraphs (d) and (e) of Article 51(6) of the
Constitution.
(iv) How is the proportional
representation of a political party to be calculated for the allocation of
reserved seats under Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution?
81. This was perhaps the most
debated and, if we may say so, the most challenging question involved in the
case. Because of the illegal mentioning of contesting candidates of a political
party (PTI) in the list of contesting candidates (Form-33) and its returned
candidates as independent returned candidates in the Section-98 Notification,
as held above, an unusual situation has arisen in a parliamentary democracy.
This situation seemingly pits one of the fundamental principles of
democracy—that the voice of the electorate should be truly reflected in the
composition of the legislative bodies—against the constitutional objective of
ensuring adequate representation of women and minorities (non-Muslims) in such
bodies.[57]
However, with the answers provided to questions (i), (ii) and (iii) above, it
has become evident that this conflict does not actually arise.
Position of
political parties and independent members of Parliament in a parliamentary
democracy
82. Our Constitution, as held by
this Court in Benazir Bhutto,[58]
establishes a parliamentary democracy with a cabinet form of government, which
is primarily composed of the representatives of the political party in
majority. Therefore, the cabinet form of government is essentially a government
of the political party in majority, or of political parties in the case of a
coalition government. The political party or parties that form the Government
are the connecting link between the Government (Executive) and the people, and
between the Parliament (Legislature) and the people. They are the effective
instrumentalities by which the will of the people is made vocal, and the
enactment of laws and the governance of the country in accordance therewith
made possible. Political parties form the bedrock of representation in a
parliamentary democracy and are fundamental, constitutive components of
representation, not mere accessories.[59]
83. In the usual course of a
parliamentary democracy, competing political parties, advocating for different
manifestos, make the parliamentary election meaningful by giving voters a
choice. They convert the results of a parliamentary election into a government The party or parties in the majority form the Government,
while the party or parties in the minority serve as a fervent opposition. The
opposition criticises the policies and actions of the Government and thus calls
the Government to justify its policies and actions, thereby making it
accountable to the people. Therefore, political parties are institutions of
great importance in a parliamentary democracy and a vital feature of a
representative government.[60]
84. On the other hand, persons elected as members of a House of
Parliament (Legislature) in their personal capacities, as independent
candidates, in the words of Nasim Hassan Shah, J., ‘just toss around on the
political scene, rudderless and without a destination’.[61]
It is only when they join a political party that they become a force capable of
exercising some influence through their activities for the welfare of the
constituencies and the public they represent in Parliament. They, as members of
a political party, and not as independent members of Parliament, can best
achieve the objective of effectively representing their constituencies in
Parliament—whether in legislative business and forming executive policies or
taking executive actions if they become part of a party in government, or by
holding the Government accountable for its policies and actions if they are
part of a party in opposition.
85. The above position of political parties and that of the
independent members of Parliament in a parliamentary democracy, such as ours,
guides our understanding of the procedure prescribed for the allocation of the
reserved seats.
86. As
evident from the above-cited provisions of Article 51 of the Constitution,
clause (3) thereof allocates the specific number of seats reserved for women to
each Province and clause (6)(d) provides the procedure for electing the members
to those seats. A joint reading of both clauses makes it clear that the members
to all the reserved seats allocated to a Province under clause (3) are to be
elected under clause (6)(d) of Article 51 as per the
proportional representation system of political parties from the lists of their
candidates on the basis of total number of general seats won by each political
party, and no reserved seat shall ordinarily remain vacant. Although the
arguments before us presented divergent contentions on the meaning of the
expression “political party” used in clause (6)(d),
none disputed the proposition that only political parties, not independent
returned candidates, are entitled to the allocation of the reserved seats.
Independent returned candidates can only be counted towards the proportional
representation if they act in accordance with the proviso and join a political
party, in which case their seats shall be counted as the seats of the political
parties to which they join for the purpose of determining the proportional
representation of political parties.
Proportional representation
system of political parties is a composite expression
87. A composite expression, as Bennion writes,[62]
must be construed as a whole. While a certain meaning can be collected by
taking each word in turn and then combining their several meanings, but it does
not follow that this is the true meaning of the whole phrase. Each word in the
phrase may modify the meaning of the others, giving the whole its own meaning.
It, therefore, certainly is not a satisfactory method of arriving at the
meaning of a compound phrase to sever it into several parts, as observed by
Lord Halsbury,[63]
and to construe it by the separate meaning of each of such parts when severed.
The intention of the Legislature is to be discovered by taking the words as
they occur—in the combination in which they are placed—not by breaking up a
compound expression and weighing the words separately.[64]
If a composite expression is comprehensive, it is unnecessary to determine the
dividing line between different terms used in the expression.
88. The provisions of paragraph (d) of Article 51(6), when read
in light of the above principles of interpreting a composite expression, remove
the confusion that dwelled in the minds of some of us regarding the meaning and
scope of the “proportional representation system” envisaged by that paragraph.
The complete and composite expression used in the said paragraph is
“proportional representation system of political parties”. The expression
“lists of candidates”, annexed to it with an apostrophe, only provides the
mechanism for electing members to the reserved seats from the lists of
candidates of the political parties. So read, the provisions of paragraph (d)
of Article 51(6) become consistent with the above-stated legal position that
the members to all the reserved seats allocated to a Province under clause (3)
are to be elected under clause (6)(d) of Article 51 as
per the proportional representation system of political parties from the lists
of their candidates on the basis of total number of general seats won by each
political party, ensuring that no reserved seat ordinarily remains vacant.
Constitutional objective of
providing seats reserved for women and non-Muslims
89. The Principles of Policy provided in Chapter 2 of Part II
of the Constitution, often referred to as the conscience of the Constitution,[65]
require that steps be taken to ensure the full participation of women in all
spheres of national life and to safeguard the legitimate rights and interests
of minorities (non-Muslims), including their due representation in the Federal
and Provincial services.[66]
To actualise this constitutional objective, a certain number of seats have been
reserved in the National Assembly and Provincial Assemblies for women and
non-Muslims (minorities). This constitutional affirmative action aims to promote
gender and minority-inclusive representation in the legislative bodies,
allowing for the voices of various segments of society to be heard and
considered in the law-making process. It ensures that the legislative bodies
reflect the diverse perspectives and interests of the population.
90. The principle of proportional representation of political
parties, according to which the members to the reserved seats are elected, aims
to reflect the electoral support for political parties in the composition of
the legislative bodies. By distributing the reserved seats among political
parties based on the general seats won by them, the legislative bodies remain
representative of the electorate’s choice. Adopting an interpretation of
paragraphs (d) and (e) of Article 51(6) that would result in holding certain
reserved seats vacant would lead to a form of disenfranchisement, where the
electorate’s mandate is not fully realised in terms of gender and minority
representation, and thus frustrate the constitutional objective of providing
for such reserved seats.
91. Rule 95(2) of the Elections Rules, which provides that the
seats won by independent candidates, other than those who join a political
party, shall be excluded for the purpose of determining the share of each
political party, is thus found consistent with the constitutional provisions,
as it ensures the constitutional objective that no reserved seat should
ordinarily remain vacant.
Answer to question (iv), and its applicability to PTI and other political parties
92. In view of the above, question (iv) is answered as follows:
for the purpose of allocating reserved seats under Articles 51(6)(d) & (e), the proportional representation of political
parties is to be calculated on the basis of total number of general seats won
by each political party, including the seats of independent returned candidates
who join it, but excluding the seats of other independent returned candidates.
The Commission is to calculate the share of proportional representation of PTI
and other political parties in the reserved seats accordingly.
Denial of due share of
proportional representation in the reserved seats violates the fundamental
rights of the political party and the electorate guaranteed by Articles 17(2)
and 19 of the Constitution.
93. Before parting with this part of the judgment, we want to
underline that the aforementioned principle of holistic and harmonious reading
of closely interlinked provisions of the Constitution requires that the
provisions of paragraphs (d) and (e) of Article 51 are to be read not only in
conjunction with Article 63A(2) but also with Article
17(2) of the Constitution, which is also closely related thereto. As
aforementioned, this Court has held in the cases of Benazir Bhutto and Nawaz
Sharif that the right to form a political party guaranteed by Article 17(2)
includes the right to participate in and contest elections as a political
party, and the right to form the Government and complete the prescribed tenure
if the members of the political party constitute the requisite majority. We
find that the right to so many of the reserved seats that are proportionate to
the general seats won by a political party is also an integral part of the
right to form a political party, as this right also gives the “life and
substance” to the said named fundamental right. Therefore, denial of the right
to reserved seats proportionate to the general seats won by it would violate
the fundamental rights of a political party guaranteed by Article 17(2) as well
as the fundamental right to vote of the electorate that have voted for such
political party guaranteed by Article19 of the Constitution.
What relief would serve the ends
of justice?
94. Having thus answered the questions of law, we shall now
examine what relief would serve the ends of justice in the peculiar facts and
circumstances of this case. When we speak of justice, we have the intuitive
sense of putting things aright and in their appropriate place, of
re-establishing a lost harmony and equilibrium, of remaining true to the nature
of things, of giving each his due.[67]
In this regard, we are also guided by the following golden words of Kaikaus,
J., written in Imtiaz Ahmad:[68]
Any [justice] system,
which by giving effect to the form and not to the substance defeats substantive
rights, is defective to that extent. The ideal must always be a [justice]
system that gives to every person what is his.
His lordship further observed:
I am unable to place the mistakes committed by
the Administration [public functionaries] on the same footing as mere
accidents. The difference is that in one case the harm caused to a party being
the result of a mistake committed by the Administration there is an
obligation on our part to undo it as far as that is possible. … In relation
to Courts there is a well-known saying that the act of Court will not prejudice
anybody. I do not see why the principle of this maxim does not apply to the
whole machinery of the Administration [public functionaries] of which the
Courts are only a part. No mistake committed by this machinery should
prejudice any person as far as that can be helped. If the mistake of the
election authorities is like a misfortune why are elections set aside on the
ground of irregularities committed by the officers who conduct the elections?
Why does not the law regard these irregularities like events, which have
happened and cannot be helped? It cannot be the intention of the law that
rights of persons should be affected by the mistakes committed by public
officers. ... We must put the parties in the same position, as they would have
been if no mistake had been committed by the administration as long as we can
do that.
(Emphasis added)
The above principle of law, though enunciated by his Lordship in a
dissenting judgment, has appealed “to the brooding spirit of the law, to the
intelligence of a future day” and has now become well established and well
entrenched in our jurisprudence.[69]
95. We
find that the said principle is not only premised on two maxims: (i) actus
curiae neminem gravabit (an act of Court [public functionary] shall prejudice
no one) and (ii) ex debito justitiae (as a debt of justice), but are also
rooted in the constitutional provisions of Article 4 of the Constitution. Under
Article 4, it is an inalienable right of every citizen,
and of every other person for the time being within Pakistan, to enjoy the
protection of law and to be treated in accordance with law. This constitutional
inalienable right casts a corresponding constitutional inalienable duty on all
public functionaries of Pakistan to treat every citizen and every other person
for the time being within Pakistan in accordance with law. From this
constitutional right and the corresponding constitutional obligation, the
principle emerges, in our opinion, that no person should be made to suffer or
be prejudiced by an unlawful act or omission of public functionaries. If any
person suffers the loss of any right or benefit because of an unlawful act or
omission of a public functionary, he is entitled, by reason of an obligation of
justice, to be restored to that right or benefit and put in the same position,
insofar as is possible, as he would have been if such unlawful act or omission had
not been made by the public functionary.
Unlawful acts and omissions of the Returning Officers and the
Commission that caused prejudice to PTI
96. In
the present case, as discussed and determined above, the unlawful acts and
omissions of the Returning Officers and the Commission, which have caused
confusion and prejudice to PTI, its candidates and the electorate who voted for
PTI, are numerous and include the following:
(i) the wrong omission to clarify in its
order dated 22 December 2023 by the Commission that PTI is an enlisted and
functioning political party notwithstanding the rejection of its intra-party
elections and non-allocation an election symbol;
(ii) the wrong omission to clarify in its order
dated 13 January 2024 by the Commission that PTI is an enlisted and functioning
political party notwithstanding that it has not been allocated an election
symbol, and that the candidates nominated by it are to be treated and mentioned
as PTI candidates, not as independent candidates in the whole election process;
(iii) the wrong
mentioning of the status of PTI candidates by the Returning Officers as independent
candidates in the list of contesting candidates (Form-33);
(iv) the wrong decision
on the application of a PTI candidate (Mr. Raja) by the Commission in rejecting
his claim to be mentioned as a PTI candidate in the list of contesting
candidates (Form-33);
(v) the wrong
mentioning of PTI returned candidates by the Commission as independent returned
candidates in the Section-98 Notification; and
(vi) the wrong acceptance of the joining of some
returned candidates to SIC by the Commission, despite that it was not such a
political party to which an independent returned candidate could join under the
proviso to paragraphs (d) & (e) of Article 51(6) and paragraph (c) of
Article 106(3), or under clause (2) of Article 63A of the Constitution.
In addition to the above, the making of an unconstitutional rule, i.e.,
the Explanation to Rule 94 of the Elections Rules, by the Commission which
disentitles a political party to which an election symbol is not allotted from
the allocation of reserved seats despite its winning the general seats, also
contributed to causing confusion and prejudice to PTI, its candidates and the
electorate. Further, it is observed with respect, the decision by this Court on
13 January 2024 in the matter of intra-party elections of PTI on the very day
that was fixed for submission of party certificates (party tickets) and
allotment of the election symbols as per the Election Programme, and that too
without clarifying that the said decision did not affect the electoral status
of PTI and its candidates, also contributed in causing confusing and prejudice
to PTI, its candidates and the electorate.
The scope of powers of the Commission under
Article 218(3) and of the Supreme Court under Article 187(1) of the
Constitution.
97. In
view of the principle stated above, PTI, its candidates and the electorate
should not be made to suffer or be prejudiced by the unlawful acts or omissions
of public functionaries, namely the Returning Officers and the Commission.
Given that they have been deprived of their constitutional right to
proportional representation in the reserved seats due to these unlawful acts
and omissions, they are entitled, by virtue of an obligation of justice (ex
debito justitiae), to be restored to that right and placed, insofar as
possible, in the same position they would have been if such unlawful acts and
omissions had not occurred. However, there is no specific provision in the
Constitution or the Elections Act to address this situation and rectify the
wrong.
98.
Since the Legislature, while enacting a law on a subject, cannot foresee and
cover all unforeseen matters or issues that may arise in the administration of
such law in practice, it often enacts a provision that confers upon a specified
authority the general power to address such unforeseen matters or issues. In
the Elections Act, such a general power is conferred upon the Commission by
Sections 4 and 8(c).[70]
These statutory general powers are conferred upon the Commission, in addition
to the similar constitutional general power vested in it under Article 218(3)[71]
of the Constitution. Both these statutory and constitutional general powers are
to be invoked and exercised by the Commission, as held by this Court in Zulfiqar
Bhatti,[72]
when there is no specific provision of law on the matter or issue that needs to
be addressed.
99. Similar is the scope of the constitutional general power of
the Supreme Court under Article 187(1)[73]
of the Constitution: it is to be invoked and exercised by the Court to do
complete justice in any case when there is no specific provision of law that
covers or addresses the matter or issue involved.[74]
While exercising such general powers, the Commission or the Court must,
however, make an endeavour to adhere to the spirit and substance of the
provisions of law that, although not covering the matter or issue, are closely
related to it, so that the legislative intent may be given effect to the
maximum extent possible.
100. In order to invoke and exercise the general power vested
in this Court under Article 187(1) of the Constitution to address the matter
involved in the present case, we have also been guided by the observations made
by a six-member larger Bench of this Court in Saddaqat Khan.[75]
After a detailed analysis of several previous cases, the larger Bench reached
and announced the following conclusion:
The ultimate goal
sought to be achieved by the Courts was thus to do complete justice between the
parties and to ensure that the rights were delivered to those to whom they
belonged and no hurdles were ever considered strong enough to detract the
Courts from reaching the said end. Incorporation of provisions such as Section
151, C.P.C.; section 561-A in the Cr.P.C.; revisional powers of wide amplitude
exercisable even suo-motu under Section 115 of the C.P.C. and section 439 of
the Cr.P.C.; various provisions of the like contained in Order XLI, rule 4 and
Order XLI, rule 33 of the C.P.C.; the provisions of Order XXXIII, rule 5 of the
Supreme Court Rules of 1980; suo motu powers exercisable under Article 184(3)
of the Constitution and provisions of Article 187 of the Constitution, are some
of the examples which could be quoted as having been made available to the
Courts at all levels to surmount any impediments which a Court might confront
in the path of doing complete justice.
The ultimate objective sought to be
achieved by laws, the Courts and the justice system, as observed by Kaikaus,
J., and as declared by the larger Bench, is to dispense justice by ensuring
that rights are delivered to those to whom they belong; let justice be done,
though the heavens fall (fiat justitia, ruat caelum). Thus, the power
under Article 187(1) of the Constitution is focused on achieving and
prioritizing fairness to ensure complete justice in any case.
Point of divergence between eight
Judges and three Judges
101. Up
to this point, in invoking and exercising the general power of this Court
vested in Article 187(1) of the Constitution, we (the eight Judges) and the
three Judges (Hon’ble the Chief Justice, Justice Yahya Afridi, and Justice
Jamal Khan Mandokhail) were largely aligned. Unfortunately, from this point
onward, despite several mutual discussions on various aspects of the matter, we
could not reach a consensus on what ultimate relief would be “necessary for
doing complete justice” in the present case.
102. We
may underscore here what Chief Justice Dickson said about the working of the
Supreme Court of Canada: “The people of Canada are not entitled to nine
separate votes [of the nine Supreme Court Justices]. They are entitled to nine
votes after each Justice has listened to and sincerely considered the views of
the other eight.”[76]
Similarly, we believe, the people of Pakistan are entitled to a decision from a
Bench of this Court after each Judge on the Bench has listened to and sincerely
considered the views of the others. Judges need not always see eye to eye and
may ultimately disagree, but the possibility of disagreement does not absolve
them from engaging in a free and frank discussion before rendering their final
opinion. Their professional responsibility to deliver a well-considered
decision requires them to lay out both their own position and the defects they
see in their colleagues’ positions with utter frankness. Egos may be bruised,
tempers tempted, yet all must pursue the process with respect and civility.
103. Guided by the above principle,
we, in fulfilling our professional responsibility to deliver a well-considered
decision on the matter involved in the present case, laid out both our own
position and, with respect, the defects we saw in our colleagues’ positions. We
did listen to and sincerely consider their views as well. Unfortunately,
neither could we convince them of our view, nor could we bring ourselves to
agree with theirs.
104. We all (us eight and our three
colleagues) agreed that due to unlawful acts and omissions of the Returning
Officers and the Commission, PTI, its candidates and the electorate have
suffered the loss of some of their constitutional and statutory rights,
particularly their right to proportional representation in the reserved seats.
However, we differed on how we could, by virtue of an obligation of justice (ex
debito justitiae), restore them to that right and place them, insofar as
possible, in the same position they would have been if such unlawful acts and
omissions had not occurred.
105. Our learned colleagues
(Hon’ble the Chief Justice and Justice Jamal Khan Mandokhail) have formed the
opinion 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”[77]
as PTI returned candidates. Whereas our learned colleague (Justice Yahya
Afridi) is of the view 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,…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”.[78]
We respect their opinions but disagree.
106. ‘[T]he logic of words
should yield to the logic of realities’.[79]
With great respect, our learned colleagues have assumed and accepted that PTI
candidates filed declarations of their affiliation with another political party
(PTI-Nazriati), which were not even accepted by the Returning Officers under
the order of the Commission, by their own free will uninfluenced by any
constraint of the circumstances. Our conscience and understanding of the
realities of the case do not allow us to assume and accept this position. We
are completely at a loss to understand the logic, other than the constraint of
the circumstances, as to why a candidate of a national-level political party
(PTI), which had once formed the Federal Government and two Provincial
Governments, would supersede his candidature of that party (PTI) with a party
(PTI-Nazriati) whose name had not even been heard by most of the electorate, or
why he would leave the candidature of that party (PTI) and become an
independent candidate, by his own free will. Had it been a case of one or two
candidates, we might have imagined some plausibility of free will in their
actions. However, we cannot assume by any stretch of the imagination that
hundreds of candidates for the National Assembly and the Provincial Assemblies
would act in such a manner by their own free will, not under the constraints of
the circumstances created by the unlawful acts and omissions of the public
functionaries—the Returning Officers and the Commission. Therefore, we have
found that notwithstanding their subsequent filing of a declaration to be
treated as candidates of PTI-Nazriati or as independent candidates, 39 returned
candidates, out of the list of 80 submitted by the Commission, who had either
filed party certificates (party tickets) of PTI or declared their affiliation
with PTI in their nomination forms or statutory declarations/affidavits, are
the returned candidates of PTI.
107. Similar is the position of
those candidates whom our learned colleagues have treated as independent
returned candidates because they had not mentioned themselves as belonging to
PTI in their nomination papers. In respect of these candidates, who are 41
according to the record produced by the Commission, our learned colleagues have
presumed that they were independent candidates, and that none of them has
appeared before the Court to rebut that presumption.
108. We must say that we tried hard to understand how, in a
parliamentary democracy based on a political parties system, as underlined by
this Court in Benazir Bhutto, such a large number of candidates to the seats in
the National Assembly and the Provincial Assemblies could inspire and win the
confidence of the electorate as independents. No satisfactory answer to this
query was presented before us on behalf of the Commission and other
respondents. The assertion of SIC and PTI that they were also PTI candidates
and the electorate voted for them for their being PTI candidates though appears
satisfactory but is not supported by the record presently before us. Therefore,
it is the most challenging matter involved in the case where the scales of the
requirements of law and of justice are to be justly, fairly and reasonably
balanced.
109. We do not find any force in the argument that those
returned candidates have not appeared before us to rebut the presumption
accepted by our learned colleagues, because we find that they are before us
speaking through SIC. What SIC says on facts is the version of those returned
candidates—SIC speaks for them before us. Both SIC and PTI have narrated the
same facts and circumstances that led to the mentioning of their status as
independent candidates in the nomination papers. Both have claimed that they
were also PTI candidates and that the electorate voted for them for being PTI
candidates; they, in their individual capacities, did not have such voting
support of the electorate.
110. As held above, while exercising their general powers under
Article 218(3) and Article 187(1) of the Constitution respectively, the
Commission and this Court must endeavour to adhere to the spirit and substance
of the provisions of law that, although not explicitly covering the matter or
issue, are closely related to it, so that the legislative intent may be given
effect to the maximum extent possible. According to Section 66 of the Elections
Act, two elements make a person the candidate of a political party: (i) the
candidate’s own declaration that he belongs to that party,
and (ii) the party’s certificate (party ticket) nominating him as its
candidate. It is thus a matter between the candidate and the party to which he
claims affiliation. No consent or authorisation from any third person or
authority is required to establish their relationship and the candidate’s
status. This is the substance and spirit of Section 66 of the Elections Act.
111. Therefore, we find it more just, fair and reasonable that
this fact should be verified and then acted upon by adhering to the substance
and spirit of Section 66 of the Elections Act so that the legislative intent
may be given effect to the maximum extent possible. Instead of deciding such an
important matter, which essentially relates to the right and value of the votes
of millions of voters, merely on assumptions, presumptions or oral statements,
this fact should be determined with certain and concrete material: (i) the
written statement (declaration) by the returned candidate concerned, and (ii)
its written confirmation (certificate) by PTI. Upon submission of written statements
by the returned candidates and written confirmations by PTI through its de facto or de jure Chairman, the status
of the 41 returned candidates shall immediately and ipso facto stand determined
as a matter of law, with no subsequent act altering what, upon submission of
the statements and confirmations, will become a past and closed transaction.
Neither the returned candidates nor PTI can later resile from this position. It
is also emphasized that this verification process is solely to determine whether
the said 41 returned candidates were indeed the returned candidates of PTI, and
in no way does it amount to accepting them as independent returned candidates
and granting them another opportunity to join a political party under the
provisos to paragraphs (d) and (e) of Article 51(6) of the Constitution. Once
their status is determined upon submission of the requisite statements and
confirmations, they shall be deemed returned candidates of PTI from the date of
the publication of their names as returned candidates in the official Gazette.
Consequently, they will be considered members of the parliamentary party of PTI
in the National Assembly from the date they took the oath of office as Members
of the National Assembly (MNAs), for all constitutional and legal purposes.
112. As above held, the general power of the Commission under
Article 218(3) of the Constitution read with Sections 4 and 8 of the Elections
Act is similar to the general power of this Court under Article 187(1) of the
Constitution. Therefore, in the present case the Commission should have, by the
impugned order, in the words of Section 4(1), “issue[d] such directions or
orders as may be necessary for the performance of its functions and duties,
including an order for doing complete justice in any matter pending before it”;
or, in the words of Section 8(c), “issue[d] such instructions, exercise[d] such
powers and ma[d]e such consequential orders as may in its opinion, be necessary
for ensuring that an election is conducted honestly, justly, fairly”; or, in
the words of Article 218(3), “ma[d]e such arrangements as are necessary to
ensure that the election is conducted honestly, justly, fairly”. The
Commission, however, again made an unlawful omission by failing to exercise its
aforementioned general powers to undo the effects of its earlier unlawful acts
and omissions and to restore PTI to its constitutional right as a Parliamentary
Party and its entitlement to reserved seats proportionate to the won general
seats, thereby placing PTI, insofar as possible, in the same position it would
have been in if the said unlawful acts and omissions had not occurred. The
previous unlawful acts and omissions, as well as the said unlawful omission,
render the impugned order of the Commission ultra
vires the Constitution, without lawful authority and of no legal effect.
The Commission has failed to
perform its role as a “guarantor institution” of democratic processes
113. We find it important to emphasize that the Commission, as
a constitutional “electoral management body”, is not merely an administrative
entity but a fundamental “guarantor institution” of democratic processes, with
a constitutional status akin to a “fourth branch of government”.[80]
The Commission must therefore fully recognize its constitutional position and
the critical role it plays in a democracy while performing its duty to conduct
free and fair elections. As a central pillar of democratic electoral processes,
the Commission, in its role as a guarantor institution and impartial steward,
is tasked with ensuring the transparency and fairness of elections to maintain
public trust in the electoral system. This is essential for the legitimacy of
elected representatives and the stability of the political system. The
Commission must uphold democratic principles and the integrity of electoral
processes by ensuring that elections truly reflect the will of the people,
thereby preserving the democratic fabric of the nation. Unfortunately, the
circumstances of the present case indicate that the Commission has failed to
fulfill this role in the General Elections of 2024.
114. Another matter that has surprised us during the
proceedings of these appeals is the way the Commission participated in and
contested the matter before us as a primary contesting party against SIC and
PTI. We are cognizant that the Commission’s prime function, under Article
218(3) of the Constitution, is to ‘organize and conduct the election and to
make such arrangements as are necessary to ensure that the election is
conducted honestly, justly, fairly, and in accordance with law, and that
corrupt practices are guarded against’. This function of the Commission, ‘to
organize and conduct the election’, as held by this Court in Aam Log Itehad,[81]
is primarily executive, not judicial or quasi-judicial. However, as found in
the said case, the Commission also performs some quasi-judicial functions. In
the present case, several political parties made counterclaims regarding their
right to the disputed reserved seats, and the Commission decided these
counterclaims as an adjudicatory body. The function performed by the Commission
in the present case was, therefore, quasi-judicial. And, as held by this Court
in Wafaqi Mohtasib[82]
and A. Rahim Foods,[83]
a body performing its quasi-judicial function in a matter between two rival
parties cannot be treated as an aggrieved person if its decision is set aside
or modified by a higher forum or by a Court of competent jurisdiction. Such a
body, therefore, does not have locus standi to challenge the decision of that higher
forum or Court. Nor, we may add, can such a body contest an appeal filed
against its quasi-judicial decision by one of the rival parties as a primary
contesting party. In the present case, the Commission was a proper party to
assist the Court in effectually and completely adjudicating upon and settling
all the questions involved in the case. It should have acted in this manner,
not as a primary contesting party.
115. As for the impugned judgment of the Peshawar High Court,
we know, as held by this Court in Dossani
Travels,[84]
that the ambit and scope of the power of the High Courts under Article 199 of
the Constitution is not as wide as of the Supreme Court under Article 187 of
the Constitution to issue such directions, orders or decrees as may be necessary
for doing complete justice in any case or matter pending before it. Nor do the
High Courts possess such general constitutional power which the Commission has
under Article 218(3) to ensure that elections are conducted honestly, justly
and fairly. Therefore, without PTI’s petition, the High Court could not have
passed an order like the one we have, or the one that the Commission could have
passed, for doing complete justice and ensuring that the election is conducted
honestly, justly and fairly. However, what the Peshawar High Court could have
done, but failed to do, in the present case is to remand the matter to the
Commission with a direction to do what the Commission was required to do under
Article 218(3) of the Constitution, read with Sections 4 and 8 of the Elections
Act.
116. So far as the proceedings in the National Assembly and the
Provincial Assemblies, wherein members elected on the disputed reserved seats
under the impugned order of the Commission participated, are concerned, the
same are protected under Articles 67 and 127 of the Constitution,[85]
cannot be disputed in these collateral proceedings when no one has pointed out
to us any proceedings of the National Assembly or Provincial Assemblies that
could not have been successfully conducted if the members elected on the
disputed reserved seats had not participated therein. Further, as held by this
Court in Raja Amer,[86]
acts done in accordance with the legal position prevailing at the time of their
doing are generally protected under the doctrine of
past and closed transactions. Therefore, to protect such acts and proceedings
of the National Assembly and Provincial Assemblies concerned, which could have
been successfully conducted even if the members elected on the disputed
reserved seats had not participated, the notifications of the Commission
declaring such members as returned candidates on the disputed reserved seats
are quashed with effect from 6 May 2024, the date on which this Court suspended
the impugned order of the Commission.
PTI is before the Court
117.
Lastly, we want to say a few words to clarify that PTI, which has been granted
relief in the present case, is before us with an application for its
impleadment as a party to the case. In the normal course of procedure for civil
cases, the application for impleadment is first decided and the applicant
formally made a party to the case, before granting him any relief in the case.
This case, as explained in the opening part of this judgment, is not an
ordinary civil case but a lis of the highest order, where democracy—a salient
feature of the Constitution—and the fundamental right of the people (the
electorate) to choose their representatives for the legislative and executive
organs of the State is to be preserved, protected and defended. The procedural
formality of first accepting PTI’s application and then granting it the relief
does not carry much weight where the Court’s concern is the protection of the
right of vote of the people (the electorate) guaranteed under Articles 17(2)
and 19 of the Constitution, more than the right of any political party—whether
it be SIC or PTI or any other party. Indeed, more particularly for this
kind of cases, where the rights of people are involved, not only of the parties
before the Court, the words of Kaikaus, J., resound that
‘the proper place of procedure in any system of administration of justice is to
help and not thwart the grant to the people of their rights.’[87]
Even otherwise, as held by this Court in several cases,[88]
while doing complete justice in the exercise of its general power under Article
187(1) of the Constitution, this Court is not handicapped by any technicality
or rule of practice or procedure, nor is the exercise of this power by the
Court dependent on an application by a party.
118. So far as the application (CMA 3554/2024) of Ms. Kanwal Shauzab,
who claims to be a PTI candidate for the seats reserved for women in the
National Assembly, is concerned, it also has little significance in the
perspective we have approached and dealt with the present case. We may clarify
that although we heard her counsel in the interest of justice, as important
questions of interpretation of constitutional provisions were involved, she is
not a necessary party to the case. We are of the considered view that a contesting
candidate or a returned candidate to the seats reserved for women or
non-Muslims is not a necessary party to a dispute where the matter to be
decided is which political party and in what proportion is entitled to the
reserved seats. The persons nominated by a political party for reserved seats
or elected to such seats do not have a personal right to such seats. It is
the right of the electorate guaranteed under Articles 17(2) and 19 of the
Constitution, exercisable through political parties, to have proportional
representation in the reserved seats, not of the person nominated for or
elected to such seats.
Relief granted; short order reproduced
119. These are the detailed reasons for our short order dated 12 July
2024, which is reproduced here for completion of the record:
ORDER
Syed
Mansoor Ali Shah, Munib Akhtar, Muhammad Ali Mazhar, Ayesha A. Malik, Athar
Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan, JJ.:
For detailed reasons to be recorded later and subject to what is set out
therein by way of amplification and/or explanation or otherwise, these appeals
are decided in the following terms:
1. The impugned judgment
dated 25.03.2024 of the learned Full Bench of the High Court is set aside to
the extent it is or may be inconsistent with this Order or the detailed
reasons.
2. The order of the
Election Commission of Pakistan (“Commission”) dated 01.03.2024 (“Impugned
Order”) is declared to be ultra vires the
Constitution, without lawful authority and of no legal effect.
3. The notifications (of
various dates) whereby the persons respectively mentioned therein (being the
persons identified in the Commission’s notification No. F.5(1)/2024-Cord.
dated 13.05.2024) have been declared to be returned candidates for reserved
seats for women and minorities in the National and Provincial Assemblies are
declared to be ultra vires the
Constitution, without lawful authority and of no legal effect, and are quashed
from 06.05.2024 onwards, being the date an interim order was made by the Court
in CPLA Nos. 1328-9 of 2024, the leave petitions out of which the instant
appeals arise.
4. It is declared that the
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 Commission is under a
constitutional duty to act, and construe and apply all statutory provisions,
accordingly.
5. It is declared that for
the purposes, and within the meaning, of paragraphs (d) and (e) of clause (6)
of Article 51 (“Article 51 Provisions”) and paragraph (c) of clause (3) of
Article 106 (“Article 106 Provisions”) of the Constitution, the Pakistan
Tehreek e Insaf (“PTI”) 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 as herein after provided.
6. During the course of the
hearing of the instant appeals, on 27.06.2024, learned counsel for the
Commission placed before the Court a list (“the List”) of 80 returned
candidates for the National Assembly (now MNAs), setting out in tabular form
particulars relating to their election. Learned counsel made a categorical
statement that the Commission stood by the data so provided to the Court. In
particular, the List contained three columns marked as follows: (i) “Statement
(on nomination form) given in declaration and oath by the person nominated (i.e.,
‘I belong to’)”; (ii) “Certificate of party affiliation under Section 66 of the
Elections Act, 2017”; and (iii) “Statutory Declaration/affidavit accompanying
section 66 certificate”.
7. In the peculiar facts
and circumstances of the General Election of 2024, it is declared that out of
the aforesaid 80 returned candidates (now MNAs) those (being 39 in all and
whose particulars are set out in Annex A to this Order) in respect of whom the
Commission has shown “PTI” in any one of the aforesaid columns in the List,
were and are the returned candidates whose seats were and have been secured by
the PTI within the meaning, and for purposes of, para 5 above in relation to
the Article 51 Provisions.
8. In the peculiar facts
and circumstances of the General Election of 2024, it is further ordered that
any of the remaining 41 returned candidates out of the aforesaid 80 (whose
particulars are set out in Annex B to this Order) may, within 15 working days
of this Order file a statement duly signed and notarized stating that he or she
contested the General Election as a candidate of the political party specified
therein. If any such statement(s) is/are filed, the Commission shall forthwith
but in any case within 7 days thereafter give notice to the political party
concerned to file, within 15 working days, a confirmation that the candidate
contested the General Election as its candidate. A political party may in any
case, at any time after the filing of a statement as aforesaid, of its own
motion file its confirmation. If such a statement 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 for the purposes
of para 5 above in relation to the Article 51 Provisions. The Commission shall
also forthwith issue, and post on its website, a list of the retuned candidates
(now MNAs) and seats to which this para applies within 7 days after the last
date on which a political party may file its confirmation and shall
simultaneously file a compliance report in the Court.
9. For the purposes of para
5 of this Order in relation to the Article 51 Provisions, the number of general
seats secured by PTI shall be the total of the seats declared in terms of para
7 and those, if any, to which para 8 applies. The PTI shall be entitled to
reserved seats for women and minorities in the National Assembly accordingly.
PTI shall, within 15 working days of this 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 Commission shall, out of the reserved seats for
women and minorities in the National Assembly to which para 3 of this Order
applies, 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 in terms of paras 7
and 8 of this Order.
10. The foregoing paras shall
apply mutatis mutandis for purposes of the Article 106 Provisions in relation
to PTI (as set out in para 5 herein above) for the reserved seats for women and
minorities in the Khyber Pakhtunkwa, Punjab and Sindh Provincial Assemblies to
which para 3 of this Order applies. In case the Commission or PTI need any
clarification or order so as to give effect to this para in full measure, it
shall forthwith apply to the Court by making an appropriate application, which
shall be put up before the Judges constituting the majority in chambers for
such orders and directions as may be deemed appropriate.
Annexure-A
(Names of Candidates
Affiliated with the Pakistan Tehreek-e-Insaf as per the list verified from the
data provided by ECP)[89]
|
Sr. No. |
Number and Name of the Constituency |
Name of the Candidate |
|
1.
|
NA-2 (Swat-I) |
Amjad Ali Khan |
|
2.
|
NA-3 (Swat-II) |
Saleem Rehman |
|
3.
|
NA-4 (Swat-III) |
Sohail Sultan |
|
4.
|
NA-6 (Lower Dir-I) |
Muhammad Bashir Khan |
|
5.
|
NA-7 (Lower Dir-II) |
Mehboob Shah |
|
6.
|
NA-9 (Malakand) |
Junaid Akbar |
|
7.
|
NA-17 (Abbottabad-II) |
Ali Khan Jadoon |
|
8.
|
NA-19 (Swabi-I) |
Asad Qaiser |
|
9.
|
NA-20 (Swabi-II) |
Shahram Khan |
|
10. |
NA-21 (Mardan-I) |
Mujahid Ali |
|
11. |
NA-24 (Charsadda-I) |
Anwar Taj |
|
12. |
NA-25 (Charsadda-II) |
Fazal Muhammad Khan |
|
13. |
NA-29 (Peshawar-II) |
Arbab Amir Ayub |
|
14. |
NA-30 (Peshawar-III) |
Shandana Gulzar Khan |
|
15. |
NA-31 (Peshawar-IV) |
Sher Ali Arbab |
|
16. |
NA-32 (Peshawar-V) |
Asif Khan |
|
17. |
NA-33 (Nowshera-I) |
Syed Shah Ahad Ali Shah |
|
18. |
NA-38 (Karak) |
Shahid Ahmad |
|
19. |
NA-39 (Bannu) |
Nasim Ali Shah |
|
20. |
NA-41 (Lakki Marwat) |
Sher Afzal Khan |
|
21. |
NA-83 (Sargodha-II) |
Usama Ahmed Mela |
|
22. |
NA-84 (Sargodha-III) |
Shafqat Abbas |
|
23. |
NA-95 (Faisalabad-I) |
Ali Afzal Sahi |
|
24. |
NA-96 (Faisalabad-II) |
Rai Haider Ali Khan |
|
25. |
NA-100 (Faisalabad-VI) |
Nisar Ahmed |
|
26. |
NA-101 (Faisalabad-VII) |
Rana Atif |
|
27. |
NA-102 (Faisalabad-VIII) |
Changaze Ahmad Khan |
|
28. |
NA-103 (Faisalabad-IX) |
Muhammad Ali Sarfraz |
|
29. |
NA-115
(Sheikhupura-III) |
Khurram Shahzad Virk |
|
30. |
NA-122 (Lahore-VI) |
Sardar Muhammad Latif Khan
Khosa |
|
31. |
NA-143 (Sahiwal-III) |
Rai Hassan Nawaz Khan |
|
32. |
NA-149 (Multan-II) |
Malik
Muhammad Aamir
Dogar |
|
33. |
NA-150 (Multan-III) |
Makhdoom Zain Hussain
Qureshi |
|
34. |
NA-154 (Lodhran-I) |
Rana Muhammad Faraz
Noon |
|
35. |
NA-171 (Rahim Yar
Khan-III) |
Mumtaz Mustafa |
|
36. |
NA-179 (Kot Addu-I) |
Muhammad Shabbir Ali
Qureshi |
|
37. |
NA-181 (Layyah-I) |
Umber
Majeed |
|
38. |
NA-182 (Layyah-II) |
Awais Haider Jakhar |
|
39. |
NA-185 (D.G. Khan-II) |
Zartaj
Gul |
Annexure-B
(Names of
Independent Candidates [whom PTI
claims as its candidates])
|
Sr. No. |
Number and Name of
the Constituency |
Name
of
the Candidate |
|
1.
|
NA-1 (Chitral Upper-cum-Chitral Lower) |
Abdul
Latif |
|
2.
|
NA-5 (Upper Dir) |
Sahibzada Sibghatullah |
|
3.
|
NA-13 (Battagram) |
Muhammad
Nawaz Khan |
|
4.
|
NA-22 (Mardan-II) |
Muhammad
Atif |
|
5.
|
NA-23 (Mardan-III) |
Ali Muhammad |
|
6.
|
NA-26 (Mohmand) |
Sajid Khan |
|
7.
|
NA-27 (Khyber) |
Muhammad
Iqbal Khan |
|
8.
|
NA-34 (Nowshera-II) |
Zulfiqar Ali |
|
9.
|
NA-35 (Kohat) |
Shehryar Afridi |
|
10. |
NA-36 (Hangu-cum-Orakzai) |
Yousaf Khan |
|
11. |
NA-42 (South Waziristan Upper-cum-South
Waziristan Lower) |
Zubair Khan |
|
12. |
NA-66 (Wazirabad) |
Mohammad
Ahmed Chattha |
|
13. |
NA-67 (Hafizabad) |
Aniqa Mehdi |
|
14. |
NA-68 (Mandi
Bahauddin-I) |
Haji Imtiaz Ahmed Choudhry |
|
15. |
NA-78 (Gujranwala-II) |
Muhammad
Mobeen Arif |
|
16. |
NA-79 (Gujranwala-III) |
Ihsan Ullah
Virk |
|
17. |
NA-181 (Gujranwala-V) |
Ch. Bilal Ejaz |
|
18. |
NA-86 (Sargodha-V) |
Muhammad
Miqdad Ali Khan |
|
19. |
NA-89 (Mianwali-I) |
Muhammad
Jamal Ahsan Khan |
|
20. |
NA-90 (Mianwali-II) |
Umair
Khan Niazi |
|
21. |
NA-91 (Bhakkar-I) |
M. Sana Ullah
Khan Mastikhel |
|
22. |
NA-93 (Chiniot-I) |
Ghulam Muhammad |
|
23. |
NA-97 (Faisalabad-III) |
Muhammad
Saad Ullah |
|
24. |
NA-99 (Faisalabad-V) |
Umar Farooq |
|
25. |
NA-105 (Toba Tek Singh-I) |
Usama
Hamza |
|
26. |
NA-107 (Toba Tek Singh-III) |
Mohammad
Riaz Khan |
|
27. |
NA-108 (Jhang-I) |
Muhammad
Mahbob
Sultan |
|
28. |
NA-109 (Jhang-II) |
Waqas Akram |
|
29. |
NA-110 (Jhang-III) |
Muhammad
Ameer Sultan |
|
30. |
NA-111 (Nankana
Sahib-I) |
Muhammad
Arshad Sahi |
|
31. |
NA-116
(Sheikhupura-IV) |
Khurram Munawar Manj |
|
32. |
NA-129 (Lahore-XIII) |
Mian Muhammad Azhar |
|
33. |
NA-133 (Kasur-III) |
Azim
Uddin Zahid |
|
34. |
NA-137 (Okara-III) |
Syed
Raza Ali Gillani |
|
35. |
NA-156 (Vehari-I) |
Ayesha
Nazir |
|
36. |
NA-170 (Rahim Yar
Khan-II) |
Mian Ghous Muhammad |
|
37. |
NA-172 (Rahim Yar
Khan-IV) |
Javaid Iqbal |
|
38. |
NA-175
(Muzaffargarh-I) |
Jamshaid
Ahmad |
|
39. |
NA-177
(Muzaffargarh-III) |
Muhammad
Moazzam Ali
Khan |
|
40. |
NA-180 (Kot Addu-II) |
Fiaz Hussain |
|
41. |
NA-183 (Taunsa) |
Khawaja
Sheraz Mehmood |
120. Before parting with the judgment, we feel constrained to observe,
with a heavy heart, that our two learned colleagues in the minority (Justice
Amin-ud-Din Khan and Justice Naeem Akhtar Afghan) have made certain
observations in their dissenting judgment dated 3 August 2024, which do not
behove Judges of the Supreme Court of Pakistan, the highest Court of the land.
After expressing their view that the order we passed on 12 July 2024 is not in
accordance with the Constitution and that we ignored and disregarded its
mandate, they observed that “[i]f the said 39 plus 41 persons take any step on
the basis of this judgment which is not in accordance with the Constitution,
they may lose their seats as returned candidates on the basis of violation of
the Constitution”,[90]
and that “[a]ny order of the Court which is not in consonance with the
constitutional provisions is not binding upon any other constitutional organ of
the State.”[91]
121. We
take no issue with their having and expressing the view that, in their
understanding, our order dated 12 July 2024 is not in accordance with the
Constitution, as Members of a Bench of this Court, or any Court, can
legitimately differ on issues of fact and law. They may strongly express
divergent opinions and make comments on each other’s views, highlighting
reasons why they believe other Members have erred. However, the manner in which
they have expressed their disagreement falls short of the Courtesy and
restraint required of Judges of the Superior Courts. What is more disquieting
is that, through the said observations, they appear to have gone beyond the
parameters of propriety by warning the 39 plus 41 (80) returned candidates and
urging the Commission not to comply with the majority order, which is the
decision of a thirteen-member Full Court Bench
of this Court. Such observations undermine the integrity of the
highest institution of justice in the country and seem to constitute an attempt
to obstruct the process of the Court and the administration of justice.
122. Considering the public importance of this judgment, the office is
directed to ensure translation of this judgment into Urdu in order to enhance
public access to its information, in accordance with Article 19A read with
Article 251 of the Constitution. The Urdu version of the judgment shall be
placed on the record of the case, uploaded on the Court’s website and reported
in the law journals alongside this official English version of the judgment.
(K.Q.B.) Appeal Majority View Accepted
[1]. Justice Louis Brandeis, a U.S. Supreme
Court Justice from 1916 to 1939, famously said: “The most important political
office is that of the private citizen.” This statement emphasizes the crucial
role individuals play in a democracy and highlights that the strength of
democratic governance depends on the active participation and vigilance of its
citizens.
[2]. Tarunabh Khaitan, Political Parties in
Constitutional Theory, Current Legal Problems, Vol. 73 (2020), pp. 89-125.
[3]. Aradhya Sethia, Constutitional Particracy:
Political Parties and the Indian Constitution, (2024).
[4]. Tom Ginsburg, ‘Democracy Backsliding and
the Rule of Law’ 44 Ohio University Law Review 351 (2018).
[5]. Goodwin Liu, Pamela S.
Karlan and Christopher H. Schroeder, Keeping Faith with the Constitution,
American Constitution Society for Law and Policy (2009).
[6]. Frank I. Michelman, Fidelity and
Legitimacy, Journal of the ACS Issue Groups, American Constitution Society
for Law and Policy (Vol. 1, No. 2, 2007).
[7]. Weems v. United States,
217 U.S. 349 (1910).
[8]. Morton v. Galway [1875]
3 O.M. & H. 19.
[9]. Aldridge v. Hurst [1876]
L.R. 1 C.P. 410.
[10]. Sreenivasan v. Election Tribunal
[1955] 11 E.L.R. 278.
[11]. Inamati Basappa v. Desai
Ayyappa AIR 1958 SC 698.
[12]. Mohinder Singh v. Chief
Election Commissioner AIR 1978 SC 851.
[13]. Dilshad Khan v. Arshad Ali
1999 MLD 2874 (DB).
[14]. Irshad Hussain v. Ashraf
Nagra 2003 YLR 812 (DB).
[15]. See Rule 56(1) of the Election Rules, 2017.
[16]. Nawaz Sharif v. President
of Pakistan PLD 1993 SC 473.
[17]. Griswold v. Connecticut
(1965) 381 US 479 per Justice Douglas.
[18]. Benazir Bhutto v. Federation of Pakistan PLD
1988 SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 and Nawaz
Sharif v. President of Pakistan PLD 1993 SC 473.
[19]. Ibid.
[20]. Nawaz Sharif v. President
of Pakistan PLD 1993 SC 473.
[21]. Javed Jabbar v. Federation
of Pakistan PLD 2003 SC 955.
[22]. Azhar Siddiqui v.
Federation of Pakistan PLD 2012 SC 774.
[23]. Province of Sindh v.
M.Q.M. PLD 2014 SC 531.
[24]. David Plotke, Representation is Democracy,
Constellations 4 (1) (1997).
[25]. The Constitution, Preamble and Article 2A
read with the Objectives Resolution.
[26]. Province of Sindh v.
M.Q.M. PLD 2014 SC 531.
[27]. Yick Wo v. Hopkins,
118 U.S. 356 (1886).
[28]. 215. Eligibility of party to obtain
election symbol.—(5) If a political party or parties to whom show cause
notice has been issued under sub-section (4) fails to comply with the provision
of section 209 or section 210, the Commission may after affording it or them an
opportunity of being heard, declare it or them ineligible to obtain an election
symbol for election to Majlis-e-Shoora (Parliament), Provincial Assembly or a
local government, and the Commission shall not allocate an election symbol to
such political party or combination of political parties in subsequent elections.
[29]. Muhammad Ali v. State Bank of Pakistan 1973
SCMR 140; F. B. Ali v. State PLD 1975 SC 506; M.B. Abbasi v. State 2009 SCMR
808; Zahid Rehman v. State PLD 2015 SC 77; Tahir Naqash v. State PLD 2022 SC
385.
[30]. PIA Corporation v. Labour Court PLD 1978 SC
239; Federal Land Commission v. Ghulam Qadir 1983 SCMR 867; Siddique Khan v.
Abdul Shakur PLD 1984 SC 289; UBL v. Yousuf Dhadhi 1988 SCMR 82; Wukala Mahaz
v. Federation of Pakistan PLD 1998 SC 1263; B.I.S.E. v. Rizwan Rashid 2005 SCMR
728; Tahir Hussain v. Liaqat Ali 2014 SCMR 637 and State Bank of Pakistan v.
S.E.C.P. PLD 2018 SC 52.
[31]. Maxwell on the Interpretation of Statutes
(12th ed.) pp. 238-240 and Bennion on Statutory Interpretation (7th ed.)
pp. 715-717.
[32]. Nawaz Sharif v. President of Pakistan PLD
1993 SC 473; Justice Qazi Faez Isa v. President of Pakistan 2022 SCP 140 per
Maqbool Baqar, J., et al. and Hamza Rasheed v. Election Appellate Tribunal 2024
SCP 66 per Syed Mansoor Ali Shah, J.
[33]. F. B. Ali v. State PLD 1975 SC 506; Benazir
Bhutto v. Federation of Pakistan PLD 1988 SC 416; Ghulam Mustafa Jatoi v.
Returning Officer 1994 SCMR 1299; Wukala Mahaz v. Federation of Pakistan PLD
1998 SC 1263 and Hamza Rasheed v. Election Appellate Tribunal 2024 SCP 66 per
Syed Mansoor Ali Shah, J.
[34]. Maxwell on the Interpretation of Statutes
(12th ed.) pp. 251-252 and Bennion on Statutory Interpretation, (7th
ed.) pp. 718-719. (Although Maxwell states that statutes that encroach on the
rights of the subject are subject to strict construction in the same way as
penal statutes, we do not go thus far. In our tentative view, which is subject
to detailed examination in an appropriate case, penalties can be imposed only
by express enactment, not by necessary implication, but civil rights can be
impaired not only by express enactment but also by necessary implication.)
[35]. Tahir Naqash v. State PLD
2022 SC 385.
[36]. Benazir Bhutto v. Federation of Pakistan PLD
1988 SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 and Nawaz
Sharif v. President of Pakistan PLD 1993 SC 473.
[37]. 94. Commission to declare seats won by
each Political party.—(1) The Commission shall, by notification in the
official Gazette, declare the total number of reserved seats won by each
political party in the National Assembly and the Provincial Assemblies
respectively.
(2) The per centum share of each
political party shall be worked out with reference to total number of general
seats in the National Assembly, or, as the case may be, the respective
Provincial Assembly.
(3) In calculating the number of seats,
the highest fraction shall be taken as one seat till the allocation of total
reserved seats in the concerned Assembly is completed.
(4) The seats reserved for non-Muslims
and women shall be divided among the political parties on the basis of their
per centum share as worked out in sub-rule (2) and in order of priority of the
names of candidates mentioned in the party list: Provided that the list
submitted by a political party shall not be subject to change or alteration,
either in the order of priority or through addition of new names or subtraction
of old names after expiry of the date of submission of nomination papers:
Explanation.
— For the purpose of this rule, the expression “political party” means a
political party to which a symbol has been allocated by the Commission.
[38]. UIB v. Mohan Bashi PLD 1959 SC 296; East
Pakistan v. Nur Ahmad PLD 1964 SC 451; Hirjina Salt Chemicals v. Union Council
1982 SCMR 522; Ziauddin v. Punjab Local Government 1985 SCMR 365; Matloob Ali
v. ADJ 1988 SCMR 747; Chairman Railway Board v. Wahab Ud Din & Sons PLD
1990 SC 1034; Mehraj Flour Mills v. Provincial Government 2001 SCMR 1806;
Collector of Sales Tax v. Superior Textile Mills PLD 2001 SC 600; Pakistan v.
Aryan Petro Chemical Industries 2003 SCMR 370; Ahmad Hassaan v. Govt. of Punjab
2005 SCMR 186; Suo Motu Case No. 13 of 2009 PLD 2011 SC 619; Suo Motu Case No.
11 Of 2011 PLD 2014 SC 389 and NEPRA v. FESCO 2016 SCMR 550.
[39]. Mubeen-us-Salam v. Federation of Pakistan
PLD 2006 SC 602 (Many previous cases on the point are cited and discussed in
it); Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Baz Muhammad
Kakar v. Federation of Pakistan PLD 2012 SC 923; Lal Khan v. Crown PLD 1955 Lah.
215 (FB) and Shorish Kashmiri v. Govt. of West Pakistan PLD
1969 Lah. 438 (DB).
[40]. Benazir Bhutto v. Federation of Pakistan PLD
1988 SC 416 (decided on 20 June 1988) and Benazir Bhutto v. Federation of
Pakistan PLD 1989 SC 66 (decided on 2 October 1988).
[41]. Nawaz Sharif v. President
of Pakistan PLD 1993 SC 473.
[42]. 67. Contested election and allotment of
symbols.—(1) If after withdrawal, if any, there are more than one
contesting candidates in the constituency, the Returning Officer shall allot,
subject to any direction of the Commission, one of the prescribed symbols to
each contesting candidate.
(2) A candidate nominated by a political
party at an election in any constituency shall be allotted the symbol allocated
by the Commission to that political party under the provisions of Chapter XII
and no other symbol.
(3) A candidate not nominated by any
political party (hereinafter called as “independent candidate”) shall choose
and shall be allotted one of the symbols not allocated to any political party,
in the following manner—
(a) where a symbol has been chosen by
only one independent candidate, that symbol shall be allotted to that candidate
and to no one else;
(b) if a symbol is chosen by more than
one independent candidates and one of them has previously been a Member of the
National Assembly or a Provincial Assembly, such symbol shall be allotted to
that former Member; and
(c) if more
than one independent candidates have given preference for the same symbol, that
symbol shall be allotted by drawing of lots.
(4) No symbol shall be allotted to any
candidate other than the prescribed symbols.
(5) In every constituency where election
is contested, different symbol shall be allotted to each contesting candidate.
[43]. This Court’s order dated 13 January,
complete para 11: “11. Neither before the LHC nor before the PHC any provision of the Act, including section 215(5), was
challenged. The observation of the learned Judges that the provision of the law
was absurd was uncalled for, particularly when no provision thereof was
declared to be unconstitutional. Surprisingly, no declaration was sought, nor
given, that intra party elections were held in PTI, let alone that the same
were held in accordance with the law. If it had been established that elections
had been held then ECP would have to justify if any legal benefit to such a
political party was being withheld, but if intra party elections were not held
the benefits accruing pursuant to the holding of elections could not be
claimed.”
[44]. Haider Zaidi v. Abdul
Hafeez 1991 SCMR 1699.
[45]. Crawford, The
Construction of Statutes, (1st ed.) pp. 240-242.
[46]. Ibid.
[47]. The Elections Act, Section
2(xxviii).
[48]. Maxwell on the Interpretation of Statutes
(12th ed.) pp. 278-289 and Bennion on Statutory Interpretation (7th
ed.) pp. 513-517. See also Craies on Legislation (9th ed.) pp. 693-694.
[49]. East & West Steamship Co. v. Pakistan
PLD 1958 S C 41 (5MB) per Cornelius, J.; Pramatha Nath v. Kamir Mondal PLD 1965
SC 434; Hamdard Dawakhana v. C.I.T. PLD 1980 SC 84 (5MB); Kadir Bux v. Province
of Sindh 1982 SCMR 582 (5MB); K.E.S.C. Progressive Workers’ Union v. K.E.S.C.
Labour Union 1991 SCMR 888 (4MB) and Nawab Bibi v. Allah Ditta 1998 SCMR 2381.
[50]. Hamdard Dawakhana v.
C.I.T. PLD 1980 SC 84 (5MB). See also C.I.T. v. M/s Phillips Holzman PLD
1968 Kar. 95 (FB) and PIFFA v. Province of Sindh 2017 PTD 1
(DB).
[51]. Commissioner of Stamp
Duties v. Atwill [1973] AC 558.
[52]. Rhondda Urban District
Council v. Taff Vale Railway Company [1909] AC 253.
[53]. Jennings v. Kelly [1940]
AC 206.
[54]. Maxwell on the Interpretation of Statutes
(12th ed.) p. 331.
[55]. Cooley, A treatise on
the Constitutional Limitations, (1st ed.) p. 2.
[56]. Presidential Reference PLD 1957 SC 219;
Fazlul Quader Chowdhry v. Abdul Haque PLD 1963 SC 486; State v. Zia-ur-Rahman
PLD 1973 SC 49; Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151; Nawaz
Sharif v. President of Pakistan PLD 1993 SC 473; Al-Jehad Trust v. Federation
of Pakistan PLD 1996 SC 324; Shahid Nabi v. Chief Election Commissioner PLD
1997 SC 32; Wukala Mahaz v. Federation of Pakistan PLD 1998 SC 1263; Munir
Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 308 + 407; Presidential
Reference PLD 2013 SC 279; Judges’ Pension case PLD 2013 SC 829 and D.B.A.,
Rawalpindi v. Federation of Pakistan PLD 2015 SC 401.
[57]. The Constitution, Article 34: Steps
shall be taken to ensure full participation of women in all spheres of national
life. Article 36: The State shall safeguard the legitimate rights and
interests of minorities, including their due representation in the Federal and
Provincial services.
[58]. Benazir Bhutto v.
Federation of Pakistan PLD 1988 SC 416.
[59]. Nadia Urbinati, Representative Democracy:
Principles and Genealogy (Chicago, Ill: University of Chicago Press, 2010).
[60]. Benazir Bhutto v.
Federation of Pakistan PLD 1988 SC 416.
[61]. Ibid.
[62]. Bennion on Statutory Interpretation (7th
ed.) pp. 533-535.
[63]. Mersey Docks and Harbour Board v. Henderson
Bros. (1888) 13 App Cas 595.
[64]. Savoy Overseers v. Art
Union of London [1896] AC 296 per Lord MacNaghton.
[65]. Benazir Bhutto v.
Federation of Pakistan PLD 1988 SC 416 and Ghulam Qasim v. Razia Begum PLD 2021
SC 812.
[66]. The Constitution, Articles 34 and 36.
[67]. Seyyed Hossein Nasr, The
Sacred Foundations of Justice in Islam.
[68]. Imtiaz Ahmad v. Ghulam Ali
PLD 1963 SC 382.
[69]. Manager, J&K State Property v. Khuda Yar
PLD 1975 SC 678; Sherin v. Fazal Muhammad 1995 SCMR 584; Ladha Khan v.
Bhiranwan 2001 SCMR 533; Rauf Kadri v. SBP PLD 2002 SC 1111; Jawad Mir v.
Haroon Mirza PLD 2007 SC 472 (5MB); Zulfiqar v. Shahdat Khan PLD 2007 SC 582;
Razia Jafar v. Govt. of Bal ochistan 2007 SCMR 1256; Yasin v. Govt. of Punjab
2007 SCMR 1769; Saddaqat Khan v. Collector Land Acquisition PLD 2010 SC 878
(6MB); Ijaz Iqbal v. Faisalabad Chamber of Commerce PLD 1983 Lah. 1 and Ahmad Latif Qureshi v. Controller of Examination PLD 1994 Lah.
3.
[70]. Power to issue directions.--(1)
The Commission shall have the power to issue such directions or orders as may
be necessary for the performance of its functions and duties, including an
order for doing complete justice in any matter pending before it and an order
for the purpose of securing the attendance of any person or the discovery or
production of any document.
(2) …
(3) Anything required to be done for
carrying out the purposes of this Act, for which no provision or no sufficient
provision exists, shall be done by such authority and in such manner as the
Commission may direct.
8. Power of Commission to ensure
fair election.—Save as otherwise provided, the Commission may— ….. (c) issue such instructions, exercise such powers and make such
consequential orders as may in its opinion, be necessary for ensuring that an
election is conducted honestly, justly, fairly and in accordance with the
provisions of this Act and the Rules.
[71]. Article 218(3): It shall be
the duty of the Election Commission to organize and conduct the election and to
make such arrangements as are necessary to ensure that the election is
conducted honestly, justly, fairly and in accordance with law, and that corrupt
practices are guarded against.
[72]. Zulfiqar Bhatti v. ECP
2024 SCMR 997.
[73]. Article 187(1): Subject to
clause (2) of Article 175, the Supreme Court shall have power to issue such
directions, orders or decrees as may be necessary for doing complete justice in
any case or matter pending before it, including an order for the purpose of
securing the attendance of any person or the discovery or production of any
document.
[74]. Dossani Travels v. Travels Shop PLD 2014 SC
1: “The rationale [of power under Article 187(1)] appears to be that in
situations which cannot be resolved by existing provisions of law and warrant
an intervention by the Court, it may pass an order to ensure ‘complete
justice’.
[75]. Saddaqat Khan v. Collector
Land Acquisition PLD 2010 SC 878.
[76]. Chief Justice McLachlin reported this in her
speech, Judging in a Democratic State (2004).
[77]. Para 5 of their Lordships’
short order.
[78]. para 2 (i) of his
Lordship’s short order.
[79]. Di Santo v. Pennsylvania (1927) 273 US 34
per Justice Brandeis, approvingly cited in Manager,
J&K State Property v. Khuda Yar PLD 1975 SC 678.
[80]. Micheal Pal, Electoral Management Bodies
as a Fourth Branch of Government, Review of Constitutional Studies (Volume
21, Issue 1, 2016). See also Bruce Ackerman, The New Separation of Powers (2000)
113:3 Harvard Law Review 633 and Tarunabh Khatian, Guarantor Institutions,
Asian Journal of Comparative law (Cambridge University Press 2021).
[81]. Aam Log Itehad v. Election
Commission PLD 2022 SC 39.
[82]. Wafaqi Mohtasib v. SNGPL
PLD 2020 SC 586.
[83]. A. Rahim Foods v. K&N
Foods PLD 2023 SC 516.
[84]. Dossani Travels v. Travels Shop PLD 2014 SC
1.
[85]. Article 67.
(1) Subject to the Constitution, a House may make 2 rules for regulating its
procedure and the conduct of its business, and shall have power to act
notwithstanding any vacancy in the membership thereof, and any proceedings in
the House shall not be invalid on the ground that some persons who were not
entitled to do so sat, voted or otherwise took part in the proceedings.
Article 127.
Subject to the Constitution, the provisions of clauses (2) to (8) of Article
53, clauses (2) and (3) of Article 54, Article 55, Articles 63 to 67, Article
69, Article 77, Article 87 and Article 88 shall apply to and in relation to a
Provincial Assembly or a committee or members thereof or the Provincial
Government,…
[86]. Raja Amer v. Federation of Pakistan 2024 SCP
91 per Syed Mansoor Ali Shah, J., concurred by majority (Many previous cases
are referred to in this case).
[87]. Imtiaz Ahmad v. Ghulam Ali
PLD 1963 SC 382.
[88]. Martin Dow Marker Ltd. V. Asadullah Khan
2020 SCMR 2147 (5MB) and State v. Alif Rehman 2021 SCMR 503 (Many previous
cases are cited in these two cases).
[89]. CMA No.5924 of 2024 consists of Volume
(I-VI).
[90]. Para 11 of their
judgment.
[91]. Para 13 of their
judgment.