Raising grave concerns over the electoral process, Justice Athar Minallah has instructed the Election Commission of Pakistan (ECP) to document the nature of complaints received before, during, and after the general elections held on February 8, 2024.

He raised concerns about whether a level playing field was provided to all political parties during the controversial polls.

In a four-page additional note, Justice Minallah asserted that the Supreme Court cannot be a slave to technicalities in matters of public importance affecting every citizen and the future governance of the country.

Justice Minallah, as part of a full-court bench hearing a plea from the Sunni Ittehad Council (SIC), which demanded reserved seats based on their post-election representation in the National Assembly and provincial assemblies, directed the ECP to provide a comprehensive record of complaints.

“As a member of this bench I had, therefore, directed the commission, through the counsel who had appeared before us, to place on record the nature of complaints received prior to, during and after the general elections held on February 8, 2024, and to satisfy this court that each political player was dealt with in accordance with the command of the Constitution by providing a level playing field to all of them,” he stated.

The note expands the scope of the SIC’s case, which challenges the Peshawar High Court’s (PHC) judgment against an ECP determination. Justice Minallah asserted that the issue of reserved seats can not be isolated from broader democratic and constitutional rights.

“The larger issue involves the most fundamental democratic and constitutional right of the real stakeholders; the people of Pakistan,” he noted, stressing that the apex court’s approach, as the highest court vested with jurisdictions under Articles 184(3) and 187 of the Constitution, should be inquisitorial, especially when the real stakeholders are not before the court.

Justice Minallah underscored that the ECP must demonstrate that all political parties were treated equitably.

“It is reiterated that the buck stops with the commission to satisfy this court that each political party had a level playing field in the electoral process and that no stone was left unturned to discharge the onerous constitutional duties under the Constitution.”

He further commented that the arguments presented by ECP’s counsel raised significant questions of public importance with far-reaching implications for fundamental rights and the representative character embedded in the Constitution.

He criticised the ECP’s interpretation of the bat symbol judgment, stating, “Prima facie, the interpretation (of the bat symbol judgment) was flawed, and the judgment could not have been construed as having the effect of disqualifying a major political party from the general elections.”

Justice Minallah noted the unusual circumstances faced by candidates of the disqualified party who were striving to maintain their political identity.

“The record placed before us showed, prima facie, that the circumstances were unusual and extraordinary because the candidates of the purportedly disqualified enlisted political party were desperately endeavouring to maintain their status, as far as the voters were concerned, as a political entity.”

He raised grave concerns about the integrity of the electoral process and the role of the ECP. “The exclusion of a major political party from the general elections by the commission, on the basis of its flawed interpretation of the judgment of this court, definitely has the consequence of the disenfranchisement of voters and thus deprivation of the reserved seats.”

“The fundamental mechanism for giving effect to the political representation implicitly entrenched in the scheme of the Constitution is solely based on ensuring a genuine and credible electoral process.”

Justice Minallah stressed that the court must ensure that no voter is disenfranchised and that the integrity of the electoral process is maintained.

According to Justice Minallah, the pivotal factor in determining whether the electoral process was genuine and credible was solely the public trust in the electoral institution entrusted with the constitutional obligation to conduct the elections, i.e. the ECP.

“The legitimacy of governance, future policies, legislation and public trust in the representative institutions exclusively depends on the integrity of the electoral process and the electoral institutions,” he wrote.

“The onus is on the ECP to satisfy this court that a major political party was justifiably excluded from the political and electoral process and that conditions were not created for depriving it of the legitimate right to claim its share of reserved seats.”

Justice Minallah further added that the failure of the ECP to discharge this onus would definitely raise grave questions regarding the fulfilment of its constitutional duty to conduct elections in accordance with the Constitution’s mandate.

“The matter before us has a direct nexus with the purported disqualification of one of the major political parties from the electoral process on the basis of a flawed interpretation of the judgment of this court.”

“This court is the custodian of the rights of the people, and the right to vote is one of the most important fundamental rights,” he observed, adding that all other rights become illusory and the Constitution is gravely violated when voters are disenfranchised because the commission fails in its duty to conduct the elections in accordance with the mandate of the Constitution.

“This court cannot turn a blind eye by ignoring the grave allegations regarding the integrity of the electoral process as doing so would have profound consequences regarding the matter in hand,” he wrote. “This court cannot and must not be seen as ignoring the elephant in the room.”

He directed the ECP to submit a concise statement addressing these concerns and to confirm that a level playing field was provided to all political parties, including the PTI.

Justice Minallah concluded by noting that petitions raising questions about the electoral process should be heard alongside the current case.