A Supreme Court bench led by Chief Justice of Pakistan Qazi Faez Isa will hear the PTI’s plea seeking the restoration of its election symbol on Wednesday at 9am.
According to a cause list uploaded on Tuesday night, the three-member bench, also comprising Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, will hear the PTI petition against the Peshawar High Court’s (PHC) decision to restore an Election Commission of Pakistan (ECP) ruling revoking the party’s ‘bat’ electoral symbol over discrepancies in holding intra-party elections.
The former ruling party had moved the Supreme Court last week against the high court’s order, asking it to allow the party to contest 2024 polls under its traditional symbol.
In a Monday hearing on a PTI petition seeking initiation of contempt charges against the ECP, PTI lawyer Latif Khosa had lamented that his party’s plea seeking the restoration of its bat symbol was not fixed for hearing yet, at which the top judge had assured him that it would be heard.
Drafted by Barrister Ali Zafar and Chairman Gohar Ali Khan, the petition urged the apex court to set aside the PHC order. The PTI had approached the PHC against the ECP’s Dec 22 order on Dec 26 and a single-member bench restored the electoral symbol of the party.
Subsequently, the ECP got the decision overturned through an intra-court appeal on Jan 8. The issue has now landed in the Supreme Court.
The PTI argued that the ingredients for granting interim relief to the ECP by the high court had caused irreparable harm since the order would make the PTI dysfunctional to field candidates for the elections, especially when the last date for scrutiny was Dec 31.
“This situation is thus unwarranted in law and violative of Article 17 of the Constitution,” the petition argued. It stated that the PHC order was not sustainable in law for “being misconceived”.
The petition argued that the PTI was being discriminated against by the ECP compared to other political parties. “There are 157 political parties but the ECP never examined a single political party as it did in the case of the PTI,” the petition regretted, adding that this itself became a violation of the due process of law and a violation of fundamental rights of the petitioners.
The petition contended that the ECP had no role in the dissolution of political parties since only the federal government under Article 17(3) of the Constitution “declares that any political party has been formed or was operating in a manner prejudicial to the sovereignty or integrity of Pakistan”.
The PTI contended that the PHC order misread the entire election record and had ‘misapplied’ the settled principle of law. “The high court order by all means, on the face of it, arbitrary, capricious and unreasonable to be sustainable since it left the petitioner without a remedy.”
The ECP has no jurisdiction to challenge the internal appointments of officials of the PTI or set aside PTI’s intra-party elections or declare them void, the petition said, adding the ECP’s decision of taking away the ‘bat’ was not sustainable.
“The ECP is not a court of law and cannot question the appointments made by any political party or examine the validity of the political party’s intra-party elections or set them aside for any reason,” it said.
PHC hearing on PTI plea against ECP
Earlier today, the PHC’s Justice Ejaz Anwar and Justice Syed Arshad Ali took up a petition challenging the watchdog’s decision to revoke the PTI’s ‘bat’ symbol and nullify its internal polls.
During the hearing, PTI lawyers drew the ire of the judges for arriving to the hearing late. The four-hour-long proceedings were later adjourned till 9am tomorrow after Barrister Ali Zafar and the ECP counsel wrapped up their arguments.
When the hearing began after the requested time, Advocate Qazi Anwar informed the PHC that Gohar and Zafar would reach the court in “five to ten minutes”.
At this, Justice Anwar expressed displeasure, asking, “Are you not interested? We have been waiting since the morning for them.
“When our cases were fixed at the Supreme Court, we used to reach there early in the morning,” he added. Qazi again sought more time from the judges, assuring the court that the PTI leaders were to arrive soon.
“What manner is this that the [court] bench is being kept waiting?” Justice Anwar asked. The court noted that the ECP had submitted its response and that the hearing would begin once the PTI lawyers had arrived.
Here, Justice Anwar directed that the lawyers objecting to the PTI’s intra-party polls and electoral symbol should also be summoned. Noting that the objectors included Akbar S. Babar, the judge asked about his absence.
At one point during the hearing, Jahangir Raza, also challenging the party’s intra-party polls, said his counsel was not coming to the court due to a strike. To this, Justice Anwar remarked, “This is a court. We have nothing to do with a strike.”
Here, the ECP informed the court that it would the electoral symbols would be allotted to the candidates on January 13 (Saturday).
“If there is no symbol allotted to the PTI, their candidates would be considered independent,” ECP counsel Sikandar Shah Mohmand said.
He added that the interim relief of a stay order on the electoral watchdog’s Dec 22 ruling had ended today.
Here, Justice Ali asked, “Can this matter be solved if we make a decision today? A case in the Supreme Court would not be needed?” The ECP lawyer replied that the matter would not reach the apex court then.
When Qazi, the PTI lawyer, apologised to the PHC for the delay in Ali’s arrival, Justice Anwar directed him to tell the PTI leader that they would not wait further and gave a break in the hearing till 1:15pm.
When the hearing resumed, Barrister Zafar and Gohar appeared before the court and apologised for their late arrival.
In his arguments, Zafar recalled that those objecting to the PTI’s intra-party polls held in June 2022 had demanded that the party hold the elections again.
He argued that the PTI had submitted a record of its intra-party polls to the ECP, adding, “The election commission began raising questions on it later on.”
The PTI lawyer contended that none of those who had challenged the party polls were PTI members. “Our 800,000 voters do not include the names of the objectors,” he said.
Here, the ECP counsel said the petitioners had argued that the PTI’s intra-party polls had not been held according to the party’s constitution.
“The PTI will be deprived of its share from 227 specific seats,” Barrister Zafar said, adding that if the ‘bat’ symbol was taken away from the party, it would be rendered dormant.
At this, Justice Ali asked the PTI counsel if his objection was on the matter of intra-party polls not falling within the ECP’s jurisdiction. “If a decision is not made today, hundreds of thousands of people will be deprived of the rights of a [political] party,” Zafar argued.
The ECP lawyer then claimed that “no one was allowed to take part” in the party elections and that “everything was decided from before”.
“Can intra-party polls be held if electoral symbols still have to be allotted on January 13?” Justice Ali asked Mohmand, to which he replied that the PTI had not sought nomination papers from any candidate.
Here, the PHC asked the parties if the hearing should be adjourned till Thursday, at which Zafar requested the court to restore the interim relief given earlier.
However, Justice Anwar refused to grant the same, stating that the “interim relief was the final request”. Zafar then said the party would not be able to provide the ECP with the list of its candidates as the symbols have to be allotted on Jan 13. The court then directed him to continue his arguments.
Subsequently, the PTI counsel read out loud the ECP’s order on PTI’s intra-party polls, highlighting that the party had held its internal elections on the electoral watchdog’s orders which resulted in Barrister Gohar being elected as the chairman.
“Barrister Gohar signed on record and submitted it to the ECP,” Zafar said, adding that the commission did not have the power to declare the intra-party polls null and void.
“Even if intra-party elections are not held, the ECP cannot snatch a party’s electoral symbol,” he argued. “The ECP is only a record keeper.”
He further pointed out that the only objection raised by the commission to the party’s intra-party polls was that the appointment of the chairman was not done properly. “The ECP’s verdict is based on malafide and should be nullified,” Zafar pleaded.
After the PTI counsel wrapped up his arguments, the court adjourned the hearing for 15 minutes.
When the proceedings resumed, ECP counsel Mohmand started presenting his arguments. He said the Lahore High Court had dismissed the case as it was already fixed before the Supreme Court. “Two courts cannot be approached for relief at the same time,” he contended.
On allegations that the ECP verdict was issued in haste, the lawyer highlighted that the PTI was given several chances to implement the commission’s orders. The ECP had categorically said that the PTI would be stripped of its electoral symbols if intra-party polls were not held, he said.
Mohmand said the electoral watchdog had even granted the PTI a year to hold polls due to the Covid-19 pandemic and had issued several notices in this regard as well.
He claimed that the PTI took several “u-turns” in its documents as well, alleging that the party made amendments to its constitution but withdrew them when the election commission summoned it. “If the intra-party polls were held on the amendments withdrawn, then these polls would be nullified,” the lawyer added.
The ECP, he continued, was of the view that the PTI did not transparently hold its internal elections. Mohmand added that the party’s claim that the election commission was not empowered to revoke the electoral symbol was false and the ECP had the constitutional power to do the same.
“The commission is responsible for conducting free and fair elections,” he said.
Moreover, the ECP counsel clarified that the commission had only revoked the PTI’s ‘bat’ symbol. On the intra-party polls, he said that they should not just be in accordance with the party’s constitution but also the Elections Act. A party is bound to satisfy the ECP on its internal elections, Mohmand added.
Here, Justice Ali asked if the election commission could take action on the issue of intra-party elections. “Yes, absolutely,” the ECP counsel replied.
Meanwhile, Justice Anwar inquired if the electoral body had issued notices to the PTI, to which Mohamand said three show-cause notices had been served to the party. But the judge interjected that these notices were issued before the intra-party polls.
“Should a notice not have been issued after the internal elections?” Justice Anwar asked. The ECP counsel replied in the negative, saying that the case was already being heard and there was no need for a new show-cause notice.
“The ECP is not a court,” he contended. “The election commission is an independent regulatory body and has constitutional authority.”
The hearing was subsequently adjourned for tomorrow after the ECP counsel concluded his arguments.
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