• ‘Clarification order’ of Sept 14 had warned ECP of consequences if July 12 verdict not implemented
• Legal expert claims episode offers glimpse into ‘infighting within judiciary’

ISLAMABAD: In a surprise development, the Supreme Court office on Monday questioned the uploading of a clarification order on the top court’s website on Sept 14, in which the Election Commission of Pakistan (ECP) had been rebuked for not implementing the court’s July 12 judgement, that declared the opposition PTI eligible for reserved seats in parliament.

The Sept 14 clarification order had cautioned that a continued failure or refusal by the ECP to perform the legally binding obligation may have consequences.

The clarification order was signed by eight members of the Supreme Court, led by senior puisne judge Justice Syed Mansoor Ali Shah, who constitute majority out of the 13-judge full court.

On Monday, an apparent office note, signed by the Deputy Registrar Judicial (DRJ), wondered how the Sept 14 clarification order could have been uploaded, when neither any cause list was issued by the Supreme Court nor notices were issued by the office to the parties involved.

Besides, Monday’s note added, the clarification order was not received by the DRJ’s office until 8pm on the day it was uploaded.

Interestingly, the clarification order was still available on the SC website on Monday.

“The office note is a clear manifestation of raging infighting within the judiciary aimed at providing excuses to ECP to further delay the issuance of notification highlighting [that] the 41 MNAs belong to the PTI,” commented a senior counsel, on condition of anonymity.

The office note also mentioned the news on the media that the Supreme Court had issued a clarification of its July 12 judgement in the reserved seat case.

The clarification order of Sept 14 was reminiscent of the April 4, 2023 development, when a six-judge SC bench had overruled by affirming the March 31, 2023 former registrar’s circular highlighting the need to disregard then-Justice Qazi Faez Isa’s direction of postponing cases instituted under Article 184(3) of the constitution.

While citing then-chief justice of Pakistan Umar Ata Bandial’s observation, the circular had explained that Justice Isa’s order was made in disregard to an earlier five-judge order stating that only the CJP could initiate suo motu cases. The judgement explained that the directions issued by the bench headed by Justice Isa had no nexus or connection rather totally alien to the list before the court. That order (of Justice Isa) was clearly not final and was of an interim nature since the suo motu case was not disposed of but remained pending.

The clarification order was also clear as it explained that the 41 returned candidates — out of the total of 80 MNAs — were and are the returned candidates of PTI and thus members of PTI’s parliamentary party in the National and provincial assemblies for all constitutional and legal purposes.

The July 12 order required the ECP to confirm that the rest of the 41 independent candidates of 80 MNAs belong to PTI after they filed statements before the ECP within 15 days explaining that they had contested the Feb 8 elections as candidates of a particular political party.

Published in Dawn, September 17th, 2024