The Supreme Court has declared that the Election Commission of Pakistan (ECP) has failed to discharge its constitutional duty to actualize the will of the people and has behaved in a manner inconsistent with its constitutional duty.

“It is unfortunate that despite clear pronouncements by this court, the ECP is behaving in a manner inconsistent with its constitutional duty.

“Rather, [its conduct] is consistent with the notion that they have the constitutional power to override other constitutional institutions and the fundamental right to vote,” said a six-page additional note written by Justice Ayesha Malik in MNA Adil Bazai’s case.

Justice Ayesha was part of a three-member bench headed by Justice Syed Mansoor Ali Shah and comprising Justice Aqeel Ahmed Abbasi that on December 12 unanimously rejected the ECP’s decision to disqualify Bazai over his alleged defection under the Constitution Article 63A.

The judge, whose opinion was endorsed by other two members of the bench, reminded the ECP that elections are the lifeline of democracy and the ECP is the guarantor of electoral integrity.

“The independence of the EPP is therefore fundamental to the electoral process, without which the very foundations of democracy are undermined.

“This court has also recognized and declared that the ECP should not be subjected to political influences or that political engineering rather remains an impartial guardian of democracy as any inclination of the ECP in favor of the government would compromise the legitimacy of the political system.

“At the heart of protecting electoral integrity is the right to vote, and the exercise of that right, by the people. The supremacy of the vote underlines the idea that power and legitimacy in a democratic system derives its consent from the governed, which is why a independent constitutional body is obliged to ensure that the will of the people is actualized in elections.”

It said that the facts of the present case compelled the court to reiterate once again that the constitutional duty of the ECP cannot be considered as a superior constitutional power over other constitutional provisions and institutions.

“The ECP is, as per the constitutional mandate, an independent body with the duty to conduct free and fair elections and duty bound to ensure that the people elected by the people remain in government.

“The independence of the EKP is the fundamental safeguard in a democratic system which upholds the integrity of elections and ensures that the will of the people is translated into their consent to be governed by their elected representatives.”

It said that this independence gives legitimacy to the government because it is based on the people’s choice. It is what builds public trust, protects the rule of law and protects people from political manipulation.”

“The Constitution expressly provides that the authority of government rests solely on the will of the people. This will is manifested through the people’s exercise of their right to vote and participate in the electoral and political process.

“Elections are the primary means by which registered voters choose representatives who will govern on their behalf and exercise the powers of government. This is a fundamental right guaranteed by the Constitution,” it added.

In the lead judgement, authored by Justice Syed Mansoor Ali Shah and approved by the other two members, the SC observed that the ECP’s findings on the genuineness and validity of the consent decree dated February 16, 2024 were contrary to the weight of the material on record. and legally unsustainable.

The PML-N claimed that Bazai, an independent candidate who won elections in Quetta’s NA-262 constituency, had initially submitted an affidavit to join the party.

However, he “switched allegiance”, according to the PML-N, and became part of the Sunni Ittehad Council (SIC), a party consisting of PTI supported independent candidates.

Bazai had claimed that the statement regarding his affiliation with PML-N was false. However, the ECP had deposed him in view of the Elections Act 2017 on November 21.

The SC said that since Bazai was not found to be a member of the PML-N parliamentary party, the statements made by the PML-N chief were regarding the appellant’s departure from that party and its confirmation by the ECP through the impugned orders. without jurisdiction.

“These appeals are accordingly allowed. The impugned orders passed by the Commission are set aside and the statements of the party leader of PML-N that the appellant had defected from the said political party are not confirmed.

“Accordingly, the appellant’s membership of the National Assembly from seat NA-262 is restored as an independent member, not as a member of the PML-N parliamentary party.”

However, the court clarified that this court’s finding regarding the authenticity and validity of the consent statement dated February 16 was subject to a final decision by a civil court.

“Considering the seriousness of the appellant’s allegations of fabrication and use of a false affidavit against Shehbaz Sharif, the then President of PML-N and now the Prime Minister of Pakistan, we expect that the civil court where the civil case is pending, and the judge before whom the criminal complaint is pending judgment shall determine the same as early as possible,” it said.