ISLAMABAD, JAN 13: The Supreme Court on Saturday set aside the Peshawar High Court (PHC) order that reinstated “bat” as PTI’s electoral symbol for the general elections.
The verdict was announced two hours beyond its scheduled time.
After hearing arguments from the counsels of both the PTI and the ECP the entire day today as well as yesterday, Chief Justice of Pakistan (CJP) Qazi Faez Isa remarked that he will consult his co-judges before coming up with his observations.
“Both sides argued the case well. We will have a discussion. Let’s see what we come up with; can’t say anythign yet,” the CJP added before the bench took a break.
A three-member bench — comprising the CJP, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali — heard the ECP’s petition challenging the PHC decision to restore the PTI’s election symbol.
On December 22, the ECP had decided against letting PTI retain its electoral symbol for the general elections, saying that it had failed to hold intra-party polls as per its prevailing constitution and election laws.
Subsequently, the PTI approached the PHC against the ECP order on Dec 26 and a single-member bench restored the party’s electoral symbol until Jan 9, directing that the case be fixed before a divisional bench.
On Dec 30, the electoral watchdog filed a review application in the PHC, arguing that the court had overstepped its jurisdiction. Days later, in a major blow for the PTI, the high court withdrew the stay on the ECP order, stripping the party of its symbol again.
Consequently, the PTI moved the Supreme Court against the restoration of the ECP ruling. On Wednesday, the party had withdrawn the appeal as the matter was already being heard by the PHC.
The same day, the PHC had declared “illegal” the ECP’s decision to revoke PTI’s iconic ‘bat’ symbol and reject its intra-party polls. In the short order, the PHC had termed the ECP order as “illegal, without any lawful authority and of no legal effect”.
According to the court, the PTI was entitled to the election symbol “strictly in terms of sections 215 and 217, read with any other enabling provision of the Elections Act 2017 and Election Rules 2017”.
On Thursday, the ECP had challenged the PHC’s decision to restore the PTI’s election symbol. Simultaneously, the PTI initiated legal action in the PHC, filing a contempt petition against Chief Election Commissioner Sikandar Sultan Raja and other ECP members for not implementing the high court’s order in the case.
During the previous hearing yesterday, CJP Isa had observed that democracy was a fundamental right, which should be present in both a country and a political party.
Justice Isa had also highlighted that the case was “time sensitive” with the Feb 8 general elections approaching, adding that the matter required “immediate attention”.
ECP counsel Makhdoom Ali Khan had contended that the PTI had held its intra-party polls “secretly” and the elections were not in accordance with the party’s documents. Upon being repeatedly questioned, he also assured the bench that no discriminatory behaviour had been adopted with the party.
The apex court is expected to announce its verdict on the ECP’s appeal today as returning officers (ROs) are also set to allocate poll symbols to electoral candidates.
During today’s hearing, Hamid Khan has appeared as the PTI counsel while Makhdoom Ali Khan is present as the ECP lawyer. PTI lawyer Ali Zafar and the party’s chief election commissioner (CEC) Niazullah Niazi are also present in the courtroom.
The hearing
At the outset of the hearing, CJP Isa said that the detailed order of the PHC restoring the PTI’s symbol has been issued, at which the party counsel termed it an “excellent decision”.
Hamid then came to the rostrum, noting that today was the last day to submit the party tickets to the ECP so he would try to wrap up his arguments soon. “We also have less time as we also have to write the order,” the chief justice said indicating that the court would announce its verdict today.
Here, Justice Mazhar noted that there were two questions: whether the court had jurisdiction or not and whether the ECP has the authority to investigate intra-party polls.
Zafar then argued that neither the Constitution nor the Elections Act 2017 granted the electoral watchdog the right to review a party’s intra-party elections.
Citing Article 17 of the Constitution, he asserted that contesting the elections with an electoral symbol was among a political party’s rights and that depriving a party of the same would be in violation of the Constitution.
“The election commission has discriminated against the PTI. The ECP has apparently been mala fide by taking away the ‘bat’ symbol,” he alleged, contending that the watchdog was “not a court that could grant the right to a fair trial”.
PTI insists party’s intra-party polls were legitimate
Zafar claimed that none of the PTI members had challenged the intra-party polls, asserting that they were held according to the PTI’s constitution.
He highlighted that the ECP had given 20 days to hold the intra-party elections, which the PTI complied with due to the fear of the party being “excluded from the elections”.
The PTI lawyer said his basic argument was that those challenging the intra-party polls were not party members. He added that the PTI had responded in writing to the ECP’s 32 questions, following which it set aside the intra-party elections.
Zafar contended that the election commission had not mentioned “any irregularity” in its Dec 22 order but said that the “reasons given were strange”.
He said that the ECP had said it would not accept the intra-party polls as the appointment of the party CEC was not done correctly. However, he added, that a day ago the ECP counsel had raised technical objections and talked about “democracy within the party”.
Here, CJP Isa, reiterating his remarks from yesterday, noted, “There should be democracy within political parties as well as within the country. The basic question is of democracy, not of complete implementation of the party constitution.”
“It should at least be seen that [intra-party] elections were conducted,” he said, adding that Akbar S. Babar was also a party member “even if disliked” by the party.
CJP asks PTI to share ‘whole context’ of allegations against ECP
At one point during the hearing, Justice Isa told the PTI counsel to either “give the whole context” for its allegations of mala fide against the ECP or “keep it (the arguments) legal”.
“Did we appoint them? You all appoint these people. We don’t appoint them,” he remarked, adding that the apex court could “force” the commission to perform its duties but “not take on their responsibilities”.
The CJP told the PTI counsel: “Substantiate if you are taking the angle of mala fide.”
“If they’re mala fide then we look at them with very suspect eyes or you take away this allegation. I am not saying ‘take it away’. It’s your call,” he added.
At this, Hamid said he would keep his arguments non-political. When asked if he was withdrawing his allegation of “mala fide in fact”, the lawyer replied he would not “go into that arena”.
The CJP recalled that the ECP had issued notice to the PTI when the party was in the government.
Justice Mazhar asked whether the PTI had followed the election schedule it had issued. “Were the [intra-party] elections transparent? Was it clear that who could contest the elections and who could not?” he asked.
“You ask for a level playing field [but] would also have to give your party members the same,” he remarked, noting that the ECP had not taken action on its own but upon receiving complaints. Zafar assured the court that he would respond to all questions.
“Nowadays everyone uses the word establishment, the real term is army. We should talk openly and fully,” Justice Isa said, adding that he respects constitutional institutions.
The top judge said: “If we talk about [General] Ayub’s rule, political parties in Pakistan have a history.”
“The PPP’s sword symbol was taken from them, after which PPP-Parliamentarian was created. PML-N has seen a similar time,” he remarked, adding that it must be seen who was in the government at the time.
“There is a big difference between the situation of today and then, when SC judges took oath under the PCO. Today, the PTI’s opponents are not in government,” the CJP said.
Justice Mazhar noted that any irregularities identified by the ECP are from the PTI constitution itself, to which Zafar replied that the ECP has not identified any irregularities in the election schedule and venue.
Here, Justice Isa remarked that the main matter is whether intra-party elections have been conducted or not. He further remarked that if PTI had let Akbar Babar contest the intra-party elections, and he lacked support, he would have lost anyway.
“The PTI founder is facing a trial in jail; if he comes out of jail tomorrow and wonders who these officials are, then what will happen?” the CJP wondered.
Justice Isa also asked the PTI counsel why he does not have faith in the party’s “850,000 members”, to which Zafar replied that he was pointing out the laws which the ECP used to withdraw the party’s election symbol.
“The basic point is the authority of the ECP. If that is not present, the rest of the matter will end by itself,” Justice Mazhar said.
“If the elections were conducted in a regular manner, then the election symbol should be given in any case,” Justice Isa remarked, cautioning not to get involved in the complications of the elections.
“Just tell me whether all party members got an equal opportunity in PTI’s intra-party elections or not,” the CJP stated. “The ECP cannot be shown a piece of paper and be told that elections were held.”
He added that it has to be seen whether the intra-party elections were conducted according to the prevailing procedure or not.
Zafar said that according to the Elections Act, each party has to issue a certificate within seven days of holding the intra-party polls, at which Justice Hilali observed that the certificate was subject to the election process according to the party constitution.
The PTI lawyer reiterated that the ECP did not have the authority to scrutinise the intra-party polls, to which Justice Mazhar said that the “real issue is of the jurisdiction”.
Here, CJP Isa remarked, “Or you can accept whether you want democracy or not. You cannot say that democracy remains in the house but not outside it.
“You want politics, not democracy. Politics is democracy,” he noted, asking why the PTI did not allow the 14 people challenging the party polls to contest them.
‘Barrister Gohar’s own election has become questionable’
The top judge pointed out that the PTI lawyer said the ECP could impose a fine for not holding intra-party polls properly but at the same time argued that it did not have authority for other matters.
Here, Justice Hilali wondered if the ECP “could do nothing” if a political party issued a certificate for holding intra-party elections without actually conducting them. Meanwhile, Justice Mazhar observed that the party had “gone beyond the stage of fine” by holding the intra-party polls.
The CJP then inquired Zafar who the PTI chairman was, to which he replied that it was Barrister Gohar Ali Khan. “Barrister Gohar’s own election has become questionable. If the PTI founder had given a certificate, then it would have been another situation,” the chief justice remarked.
To this, the PTI counsel responded that the certificate needed to be issued by the incumbent party chairman, not the previous one. When Justice Hilali asked who the PTI chairman was at the time of the intra-party polls, the lawyer answered that the position was held by former premier Imran Khan.
Zafar maintained that Babar had been expelled from the PTI. The CJP asked the counsel to show on record that he was not a member, to which Zafar said he would produce the document proving that.
“A certificate can only be issued once a party has held elections in accordance with its constitution,” Justice Hilali noted.
Here, the CJP observed, “The PTI’s constitution says that the chairman shall be elected every two years while others every three years. Violation of the party constitution is proved to this extent.”
Zafar then said he had been “given directives” that Babar was not a PTI member, at which CJP Isa asked who was giving him directives. “I am being given directives by the party leadership,” he answered.
“Those who joined the party two years ago are giving that instruction?” Justice Isa questioned.
Justice Hilali asked Zafar whether PTI had published the nomination papers for its intra-party elections on its website. She wondered how people were supposed to know that these were the nomination papers, as well as when to submit them.
Here, the CJP directed that the PTI’s website be checked for the nomination papers but Zafar informed the court that they had been removed from the website once the intra-party elections had concluded.
Justice Isa then asked Zafar to show any sort of proof that candidates’ fees or nomination papers had been received. The lawyer replied that fees were received in cash, to which Justice Isa questioned which political party collects their fees in cash.
Justice Hilali said, “Your party’s slogan is to empower people but the same cannot be seen here.” Zafar responded that the party had been given 20 days for “whatever mistakes” they had made.
This is talk from three and a half years ago that the ECP had directed you to hold elections, Justice Isa said. “Your response was that one year was given.”
“The ECP showed bravery by submitting a notice during the [PTI’s] government,” Justice Isa remarked, to which Zafar replied that the electoral watchdog had issued notices to all political parties and not just the PTI.
Here, Justice Mazhar said that the schedule for the intra-party polls issued by the PTI “seemed practically impossible”. “If you have to make decisions according to your wishes instead of the law, then I cannot accept them.
“All political parties should be treated equally. The ECP told us that no objections were raised on other parties’ intra-party polls,” he noted, adding that “only PTI members did not get a level playing field”.
“Why is PTI afraid of elections?” asks CJP
During one of his arguments, Zafar noted that according to the law, it was mandatory for the ECP to issue the certificate of inter-party elections to the PTI.
“The main thing is to have elections, not certificates,” the CJP responded. “Not having a certificate is not a problem, not having an election is a problem. The certificate can come even without an election.”
“Why is PTI afraid of elections?” the judge asked.
Justice Isa asked Zafar once again to provide any documents as proof that PTI’s intra-party elections had indeed taken place.
“If the PTI needed more time, it was said before that the decision [of Peshawar High Court] will have to be suspended,” Justice Isa said,
The CJP also asked Zafar to provide Imran’s nomination letter in favour of Barrister Gohar, to which he was told that there was no such letter and the decision was simply announced in the media.
“If Imran Khan says tomorrow he did not give this nomination, then what will happen?” the judge wondered.
In an interaction with PTI’s Niazi, Justice Isa remarked that the inclusion of new people in the party creates suspicion that influential people had taken over the party.
“You are insulting me,” Niazi replied, accusing Justice Isa of asking him PTI-related question even during his son’s interview to obtain license to practice as a lawyer. “I have been appearing before you for the past three years. I know why this is happening to me.”
“If you want to maintain this attitude, we won’t even hear the case. If you want to tarnish the reputation of institutions by blaming them, go ahead and do it,” the CJP remarked, forcing Zafar to intervene and apologise on Niazi’s behalf.
Zafar, continuing his arguments, said that the PTI wanted the intra-party polls to be held in Islamabad but no one was willing to give their place for the polls.
Here, Justice Hilali asked if PTI had an office where the polls were held, to which Zafar replied saying that the ground at which the polls were held was right next to the party’s office.
Justice Mazhar asked if the details of the location of the intra-party polls were shared with the ECP.
PTI counsel replied that the ECP letter was not responded to, however, the police were alerted about it. “The location of the polling location was also disclosed through the media.”
“When Akbar S Babar came, the polling time had already ended,” Barrister Zafar said. “We wouldn’t have had any reservations if he wanted to contest the elections.”
ECP petition
The ECP’s petition, submitted by former attorney general Makhdoom Ali Khan, argued that the PHC should not have proceeded with the case without first issuing a notice to the attorney general for Pakistan (AGP).
This procedural step was necessary because the legal question at hand pertained to the federal government, involving the interpretation of Article 17 of the Constitution and its relationship with the provisions of the Elections Act of 2017, it said.
The petition also highlighted that the PHC’s order conflicted with previous Supreme Court rulings, which have consistently discouraged high courts from intervening in the electoral process, which, as per the Constitution, was exclusively within the ECP’s jurisdiction.
The petition emphasised that the high court’s judgement effectively nullified key sections of the Elections Act and Election Rules by restricting the ECP’s constitutional and statutory roles in regulating and supervising intra-party elections of political parties. This interpretation contradicted the principles established in previous superior court rulings, it said.
Furthermore, it undermined the fundamental purpose of Section 215(5) of the Act, in conjunction with Rules 157 and 158, which aim to foster democracy, pluralism, and transparency within political parties by ensuring timely intra-party elections, it added.
Additionally, the PHC ruling disregarded the essence of Section 208(2) of the Elections Act, which is intended to guarantee equal opportunities for all party members to contest elections for any political party office.
It said the high court order not only rendered relevant provisions practically redundant but also enabled a political party to undertake “sham” intra-party elections without any checks and balances. This, the ECP’s petition said, was not only contrary to Article 17 of the Constitution but was also in conflict with the principles of democracy.
The petition also pointed out that the PHC’s order overlooked the fact that the Elections Act was enacted under a democratic government and led to the repeal of various election laws, some of which were established during times of extra-constitutional rule.
More to follow
