ECP application dismissed by Supreme Court .

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

In Chambers:

Justice Syed Mansoor Ali Shah

Justice Munib Akhtar

Justice Muhammad Ali Mazhar

Justice Ayesha A. Malik

Justice Athar Minallah

Justice Syed Hasan Azhar Rizvi

Justice Shahid Waheed

Justice Irfan Saadat Khan

CMA No. 7540 of 2024 in CAs. 333 & 334 of 2024 etc.

(Filed on behalf of ECP, seeking guidance on certain legal and factual issues)

AND

CMA No. 8139 of 2024 in CAs. 333 & 334 of 2024 etc.

(Reply to the CMA 7540/24 on behalf of PTI)

Sunni Ittehad Council through its Chairman,

Faisalabad and another

… Appellants

Election Commission of Pakistan through its

Secretary, Islamabad and others

… Respondents

ORDER

Through CMA 7540/2024, and in terms 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

CMA No. 7540 of 2024 etc.

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

CMA No. 7540 of 2024 etc.

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

CMA No. 7540 of 2024 etc.

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.

JUDGE

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