The Supreme Court of Pakistan on Saturday upheld a ruling of the Election Commission of Pakistan to withdraw the electoral symbol of the 'bat' from Pakistan Tehreek-e-Insaf (PTI).
As a result of the verdict, the last intraparty elections of the PTI were voided, and Barrister Gohar Ali Khan consequently ceased to be the party's electedchairperson, putting into limbo the fate of all those who had filed nomination papers and ticket certificates from the PTI.
A three-judge bench of the Supreme Court, led by Chief Justice Qazi Faez Isa, on Saturday, continued its hearing of an appeal filed by the Election Commission of Pakistan (ECP) against an order of the Peshawar High Court. The Peshawar High Court had suspended a December 22, 2023, verdict of the commission.
In its verdict, the commission had determined that the results of an intraparty election submitted by the PTI in early December were not valid since they were the outcome of an election which failed to adhere to the electoral rules and procedures prescribed in the party's constitution. Hence, the party could not be allotted its electoral symbol of 'bat', which has been in the use of the party after 2002.
The Supreme Court heard from the PTI's lawyer, the Election Commission of Pakistan's representatives and the attorney general of Pakistan. The hearings continued late into the evening, and the court pronounced its judgement after 11 pm.
While reading the five-page verdict in open court, Chief Justice Qazi Faez Isa said that the ECP had issued a notice to the PTI on May 24, 2021, to hold intraparty elections in compliance with Section 208 of the Elections Act 2017. The PTI, the order read, did not dispute that it had been unable to hold intraparty elections in the stipulated five years but sought time to hold them because of the novel coronavirus (COVID-19) pandemic.
The party was given a year to complete the elections. The party held its intraparty elections on June 8, 2022, and the ECP, in an order on September 13, 2023, determined that the PTI had failed to hold transparent, just, and fair intra-party elections. The party was allowed to hold the elections again.
However, PTI challenged ECP's order in the Lahore High Court (LHC). Initially, a single-judge bench heard PTI's petition. However, the PTI filed a request to constitute a full bench of the LHC to hear the matter. While its petitions were pending, the PTI held intraparty elections on December 2, 2023. The court noted that it did so without withdrawing its petitions pending before the LHC.
However, the intraparty elections of December 2 were challenged before the ECP by several party members who claimed that the polls were not held. The ECP issued another notice to the PTI. In response, the PTI filed a petition before the Peshawar High Court (PHC) to restrain the ECP from passing a final order.
Later, the PHC disposed of the matter by directing the ECP to complete its proceedings by December 22, 2023. The ECP issued its order on December 22, but the PTI challenged it before the PHC through a fresh petition. At the same time, two representatives of the PTI filed another writ petition in the LHC against the ECP. This petition was disposed of on January 3, 2024, with the court determining that the petitioners had not challenged Section 215(5) of the Election Act; hence, relief could not be granted.
The court noted that as the PTI shuttled between the LHC and the PHC, it did not inform the PHC that a petition on the matter had been pending before the LHC.
Further, the SC stated that the petition filed before the PHC on the intraparty elections was not maintainable since the matter was pending before the LHC.
"If two and more courts have concurrent jurisdiction, while a petitioner may elect to avail of his remedy before either court, but having chosen a particular court, the same dispute cannot then be taken to the other court," the SC order read.
It added that the ECP has called upon the PTI to hold its intraparty elections for three years. Despite that, the court said, they wanted to see if the ECP had discriminated against the PTI.
"It transpired that ECP had passed orders against 13 other registered political parties which were far more severe than the order passed against PTI; one such case, of All Pakistan Muslim League, came before this Court on January 12, 2024, and the order of the ECP, delisting the said political party, was upheld," the court stated.
The court stated that, in its opinion, the ECP should not concern itself with minor irregularities in holding a political party's elections.
"However, in the instant case, not even prima facie evidence was produced to show that a semblance of elections had been held," the court held, adding that at least 14 PTI members complained to the ECP that elections had not been held.
"These complaints were brushed aside in the writ petition by simply asserting that they were not members of PTI and thus not entitled to contest elections, but this bare denial was insufficient, particularly
when they had credibly established their long association with PTI," it said, adding that if any member of a political party is expelled, it must be done in accordance with section 205 of the Act, but no evidence in this regard was forthcoming.
"Democracy founded Pakistan, a fundamental aspect of which is the ability to put oneself forward as a candidate and to be able to vote, both within a political party and in general elections. Anything less
would give rise to authoritarianism, which may lead to dictatorship," the court observed.
On PTI's intraparty elections, the court observed: "Members of PTI were not provided nomination papers when they went to get them, nor were any intraparty elections held. Incidentally, the notice issued by the PTI Secretariat stated that the elections were to be held in Peshawar but did not mention the venue, and then the venue was shifted to Chamkani, which is a village adjacent to Peshawar."
"Surprisingly, no declaration was sought, nor given, that intraparty elections were held in PTI, let alone that the same were held in accordance with the law. If it had been established that elections had been held, then ECP would have to justify if any legal benefit to such a political party was being withheld, but if intraparty elections were not held, the benefits accruing pursuant to the holding of elections could not be claimed."
The court also chastised judges of the higher judiciary for their observation that the provision of the law (Article 215(5)) was absurd, noting that such an observation was uncalled for when such a provision was not deemed unconstitutional.
CJP Isa in the verdict, disagreed with the judges of the high court that "the ECP did
not have 'any jurisdiction to question or adjudicate the Intra Party Elections of a political party.' If such an interpretation is accepted, it would render all provisions in the Act requiring the holding of intraparty elections illusory and of no consequence and be redundant."
The court then allowed ECP's petition, setting aside the order and judgement of the PHC, restoring its order of December 22.