Peshawar High Court's order on PTI 'bat' symbol is flawed: CJP Isa

“PHC did not issue declaration that PTI’s intra-party polls were in line with law,” says top judge

Abdul Qayyum Siddiqui
Daniyal Aziz
Maryam Nawaz

CJP Qazi Faez Isa. — Supreme Court website
CJP Qazi Faez Isa. — Supreme Court website

  • SC adjourns hearing of plea against PTI's 'bat' symbol till Saturday. 
  • CJP says PHC didn't declare PTI’s intra-party polls in line with law. 
  •  "Whether anyone wants or not, we want polls conducted in country.”

ISLAMABAD/PESHAWAR: Chief Justice of Pakistan (CJP) Qazi Faez Isa said Friday that the Peshawar High Court’s (PHC) order to restore the Pakistan Tehreek-e-Insaf’s (PTI) iconic electoral symbol ‘bat’ was prima facie, flawed.

Heading a three-member bench comprising Justice Muhammad Ali Mazhar and Justice Musarat Hilali, the top judge passed these remarks during a hearing of the Election Commission of Pakistan’s (ECP) petition against the PHC verdict restoring the PTI’s electoral symbol.

The election commission had on December 22 barred the PTI party from keeping its ‘bat’ symbol for the upcoming February elections, citing irregularities in their internal polls that did not comply with the party's own constitution and election laws.

Following the ECP's decision to revoke their symbol, the PTI challenged it in the PHC. A single-member judge granted temporary relief, reinstated the bat symbol, and referred the case to a larger bench for a hearing on January 9.

Then, on December 30, the polling body challenged the PHC’s jurisdiction over the matter. However, in a dramatic turn of events, the PHC reversed its earlier decision and upheld the ECP’s order.

Facing the prospect of losing its iconic cricket bat symbol for the upcoming elections, the PTI took its fight to the highest court in the land — the Supreme Court. However, in a strategic move, they later withdrew their appeal, hoping for a favourable outcome from the PHC.

And the PTI did get what it wanted. The PHC Wednesday declared the commission’s order “illegal, without any lawful authority and of no legal effect”.

But the commission, dissatisfied with the high court’s order on Thursday, challenged the decision in the apex court, seeking its revocation. Subsequently, the PTI also filed a plea in the PHC against Election Commissioner Sikandar Sultan Raja and other ECP members for not following up on the PHC’s order.

But during today’s hearing, CJP Isa raised a pertinent question did the high court declare PTI’s intra-party polls in line with the law? “The issue of bat electoral symbol’s allotment comes later. First, we will have to review the party’s intra-party elections.”

“Peshawar High Court did not issue a declaration that PTI’s intra-party polls were in line with the law. It just ordered that PTI should be given its election symbol back. The Peshawar High Court’s decision is flawed and prima facie.

The hearing

At the outset of the hearing, PTI lawyer Hamid Khan and ECP lawyer Makhdoom Ali Khan appeared before the court, while PTI lawyer Ali Zafar attended the hearing via video link from the top court's Lahore registry.

Akbar S. Babar, the estranged PTI leader who initially challenged the party's intra-party elections in ECP, also appeared before the court.

Meanwhile, Gohar Ali Khan, who was elected as PTI chairman in the controversial intra-party polls, party's chief election commissioner Niazullah Niazi, and lawyer Shoaib Shaheen were also present during the hearing.

During the hearing, CJP Isa observed that the ECP is a constitutional body and no one can interfere in its domain.

“Supreme Court will not interfere in the domain of the Election Commission of Pakistan. However, if ECP commits any unconstitutional act then the court can look into it,” the top judge added.

The PTI counsel requested the court to adjourn the hearing till Monday to prepare for the case.

At this, CJP Isa said the PHC decision has to be suspended for three days if the case is adjourned till Monday.

Meanwhile, ECP counsel Makhdoom Ali told the bench that electoral symbols will be allotted to candidates contesting the February 8 polls tomorrow.

Advocate Khan challenged the ECP’s locus standi and maintainability of the plea saying that the electoral body cannot challenge the PHC verdict in the SC as it is not an affected party.

The ECP counsel said cannot be sustained in the eyes of the law and added that the electoral body has the authority to issue electoral symbols to political parties.

CJP Isa observed that the ECP is a constitutional body which has two primary responsibilities — to deal with the affairs of the political parties and to hold transparent elections.

“If the Election Commission's locus standi is questionable, then questions will also be raised on PTI's [right to appeal] as to why PTI moved the PHC,” the CJP remarked.

CJP Isa said the ECP decision will become meaningless if it does not appeal decisions.

At this, PTI counsel Khan questioned whether a district judge can overturn his own decision.

CJP Isa responded by saying that the district judge is subordinate to the judiciary while the ECP is an independent constitutional body.

“Mr Hamid Khan, don't compare a constitutional institution with a legal institution. The two judgments you referred to are regarding legal entities,” CJP Isa told Advocate Khan.

The PTI counsel maintained that every constitutional institution operates under the law and the Election Commission operates in accordance with the law of the Election Act

“We have noted your objection,” the CJP added.

After the court met again following the break, ECP counsel Makhdoom Ali resumed his arguments.

The ECP counsel contended that PTI intra-party elections were kept secret and documents submitted by the party regarding the polls were not consistent with facts.

The CJP inquired ECP counsel about the former PTI secretary general Asad Umar who quit the party following the May 9 events.

“Is there any resignation of Asad Umar? Has he been expelled from PTI?” the CJP asked.

However, the ECP counsel expressed ignorance saying the electoral body does not have any information regarding Umar’s resignation and added that incumbent PTI’s secretary general Umar Ayub signed the notification related to the PTI intra-party elections.

However, he said it’s not known how Ayub became the party’s secretary general.

After hearing the ECP’s counsel arguments, the CJP observed: “It means PTI has violated its constitution.”

He further asked: “Where did the intra-party elections take place? In a hotel or a cricket ground?”

The PTI counsel told the bench that the party’s intra-party polls were held in a small village near Peshawar.

“Why were intra-party elections held in this small village?” Justice Hilali inquired.

The CJP remarked during the hearing that the members of every political party have the right to cast their vote.

“If this right is taken away, it would be considered a dictatorship on a national level and would be a violation of rights,” he added.

The top judge asked if the ECP is investigating all political parties like it is doing in PTI's case.

At this, ECP's lawyer Makhdoom Ali maintained that all political parties have been inquired about their intra-party polls as per his knowledge.

The top judge stated that the PHC did not give any declaration that PTI's intra-party polls were in line with the laws. It just ruled that the 'bat' symbol should be given to PTI, he added

"What is the validity of the December 2 intra-party polls," CJP Isa asked.

The lawyer of Babar complained that PHC didn't hear him nor make him a party in the case.

The counsel said that Babar is a founding member of PTI and has been a member instead of joining another political party, but he wasn't allowed to participate in the intra-party polls.

At this, the court asked for evidence of Babar being a founding member of PTI and sought a copy of the PHC's written order.

Meanwhile, the ECP lawyer said that the PHC didn't issue notice to the attorney general, which is a mandatory practice in case of a constitutional matter. The high court didn't hear several parties, he added.

At this point, ECP lawyer wrapped up his arguments.

Then, the CJP remarked: "Whether anyone wants or not, but we want elections conducted in the country.”

"PTI will have to face consequences if intra-party polls are not correct," CJP Isa said before adjourning the hearing till 10am tomorrow (Saturday).

PTI lawyer Hamid will begin his arguments upon the resumption of hearing on Saturday morning.

PHC issues notice to ECP

Meanwhile, the PHC issued a notice to ECP on PTI’s plea seeking contempt of court proceedings against the electoral body over its alleged failure to comply with its order on the intra-party polls.

A two-member bench comprising Justice Shakil Ahmad and Justice Waqar Ahmad heard the petition.

PTI counsels Qazi Muhammad Anwar and Shah Faisal Ilyas appeared before the court.

The PTI contended that the ECP failed to publish the certificate of the party’s intra-party polls on its website despite the PHC’s order.

The petition said that the PHC had on Wednesday termed illegal the ECP decision of December 22, 2023, wherein the latter had invalidated the intra-party elections of the PTI and deprived it of its electoral symbol “bat”.

The PTI requested the court to initiate the contempt of court proceedings against the ECP for non-compliance with the court directives.

ECP petition

In an appeal filed under Article 185(3) of the Constitution against the PHC short order, the electoral body questioned as to whether considering the importance of the matter the high court was justified in disposing of writ petition through a short order, without giving detailed reasons.

The appeal further questioned as to whether the ECP was authorised under Sections 208, 209 and 215 of the Elections Act 2017 and Rules 157 and 158 of the Elections Rules 2017 to: (a) scrutinise and satisfy itself as to the correctness, truthfulness and validity of any intra-party election conducted by a political party; (b) scrutinise and satisfy itself as to the correctness, truthfulness and validity of any certification submitted on behalf of a political party under Section 209 of the Elections Act 2017 in respect of conduct of an intra-party election; and (c) ascertain and satisfy itself as to whether any intra-party election conducted by a political party was in fact and in law conducted in accordance with the constitution of such political party; and if so, whether satisfaction of the ECP of the matters mentioned at (a), (b) and (c) is a condition precedent to entitlement of a political party to allocation of a common election symbol.

“What is the true object, meaning, import and scope of Sections 208, 209 and 215 of the Elections Act 2017 and Rules 157 and 158 of the Elections Rules 2017 and whether the same have been correctly construed and applied in the impugned judgment,” the ECP questioned.

It further asked as to whether the order had rendered the supervisory and regulatory duties, powers, functions and jurisdiction of the ECP in respect of intra-party elections by political parties, redundant, nugatory and ineffective.

The ECP contended that the PHC short order is liable to be set aside as it was handed down without first issuing notice to the Attorney General for Pakistan under the mandatory requirements, adding that the writ petition before the high court clearly involved interpretation of Article 17 of the Constitution and the question whether the ECP’s order of December 22 was violative of the Article 17, rights of the PTI.

The PHC judgment is liable to be set aside as it was handed down without first ensuring confirmation of completion of service of notice of writ petition on the parties arrayed as respondents, it said.

The order is erroneous as it holds that the ECP could not or did not possess jurisdiction to scrutinise and inquire into the correctness and truthfulness of the Form 65 filed by the party head, the appeal said.

The PHC order is in direct conflict with the law laid down by the apex court which is binding on the PHC. The order also fails to take into account the fact that the Elections Act 2017 was passed during a democratic dispensation. Through this Act various election laws, including those enacted during extra-constitutional dispensations were repealed. Having remained in power for almost four years, the PTI did not seek to amend the provisions of the Elections Act 2017.

The ECP prayed the apex court that in the interest of justice the PHC order should be suspended.