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Official Citation: 2024 PLJ 724
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2023
Decision Date: 2023-12-31
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-12-31, officially reported as 2024 PLJ 724. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2024 SC 724
Court Name: Supreme Court of Pakistan Judge(s):Amin-Ud-Din Khan, Ayesha A. Malik, Shahid Waheed, Syed Mansoor Ali
JUDGMENT
Reported As:2024 SCP 237, 2024 SCP 220, 2024 SCP 236, 2024 SCP 319, 2024 SCP 320, 2024 SCP 359, PLJ 2024 SC 708, PLJ 2024 SC 724, PLD 2025 Supreme Court 67 Result: Appeal Allowed Judgment
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
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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.
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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.
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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
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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 behaviour 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
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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
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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…
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