The Supreme Court has held those at the helm of affairs in the Pakistan Tehreek-e-Insaf (PTI) responsible for failing to hold intraparty elections on time, ultimately costing the party its iconic election symbol 'Bat'.
"As a consequence of not holding intra-party elections in PTI, it became ineligible to be allocated an election symbol. The sole responsibility for which lies on those running the affairs of the PTI, who did not want democracy in the party," observed Chief Justice Qazi Faez Isa in the detailed 38-page judgment issued by the Supreme Court on the Election Commission of Pakistan's (ECP) plea.
"They unilaterally and arbitrarily took over a political party in utter disregard of the 850,000 stated members of the PTI. Because of their actions and by negating the very fundamentals of democracy, that is, not holding elections, the party suffered and was rendered ineligible to receive its election symbol," the chief justice further observed.
On January 14, a three-judge bench of the Supreme Court, headed by Chief Justice Isa had unanimously set aside a verdict issued by the Peshawar High Court (PHC), wherein it had suspended an order issued by the ECP to revoke the allocation of the party's election symbol.
In the judgment, Chief Justice Isa observed that a political party must never be deprived of its election symbol for a minor violation. At the same time, he observed that forsaking intraparty elections constitutes a major violation of the law and the Constitution.
"Those in charge of the PTI were adamant not to hold intra-party elections, and their intransigence alone deprived the PTI of its symbol. If intraparty elections had been held, all benefits mentioned in the Elections Act would accrue, including the party getting its symbols."
The top court observed that no one actively sought to deprive the PTI of an election symbol, not the ECP, the government, or any other political party.
It further added that the ECP repeatedly called for holding the intraparty elections in PTI and had clearly spelt out the consequences if the elections were not held.
"The Elections Act mentions the issuance of a notice, but ECP issued repeated notices and also multiple reminders. Therefore, we have no doubt that the ECP gave more than sufficient time for compliance with the requirement to hold intraparty elections in the PTI."
Regarding the conduct of the ECP and PTI's claim that it had acted unfairly and not in accordance with the law, the top court observed that the ECP informed the PTI on multiple occasions through letters and show cause notices to conduct intraparty elections.
The court noted that a reply from the party to an ECP show cause notice had acknowledged that intraparty elections had not been held, and a request was made to extend the time for holding the elections by a year.
"It was not contended that the law did not empower the ECP to withhold election symbol or that such a provision was unconstitutional. On August 24, 2021, the ECP granted the extension."
The top court said that when these notices were issued to the PTI, the party was governing in the federation, and former party chief Imran Khan was the prime minister.
"The PTI was also governing in the provinces of Punjab and Khyber Pakhtunkhwa. Therefore, the allegations of partisanship which were subsequently levelled against the ECP are incomprehensible," the top court observed.
Regarding the PTI's dual litigation on intraparty elections, the top court stated that a party cannot simultaneously raise the same matter before two courts.
"The rule of law and the judicial process would be seriously undermined if a party simultaneously agitates the same matter before two different high courts," the court held, adding, "This may also result in conflicting decisions as happened in the present case; the Lahore High Court decided (in Writ Petition 287/2024) that unless the applicable provisions of the Elections Act are assailed, and only if they were declared unconstitutional, the relief sought could be agitated, however, the Peshawar High Court completely disregarded this aspect of the case."
In the verdict, Chief Justice Isa made certain observations regarding Article 17 and democracy. He observed that democracy lies at the root of this case, adding that if intraparty elections are not held in a political party, it severs its relationship with its members and renders a party a mere name without meaning or substance.
"In the present case, we are not delving into the mode and manner in which intraparty elections are held. We have restricted ourselves to inquiring and determining whether intraparty elections were at all held in PTI."
The court clarified that if an individual wins an election unopposed, it does not mean that he/she was not deemed to have been elected. But if everyone was elected unopposed, without any proof of elections having taken place, then it is altogether a different matter.
"Umer Ayub Khan describes himself as the Secretary General of PTI, but without there being anything credible on record to show how he had assumed this important position. Gohar Ali Khan describes himself as the chairman of PTI, but in his case too, there is nothing credible on record to establish how he had claimed to be the chairman and supplanted himself with Imran Ahmed Khan Niazi, who in the first case (Writ Petition 61171/2023) had himself stated that he was the chairman of the PTI."
The court stated that once it was established that intraparty elections had not been held, legitimate questions arose about how important party offices were being occupied.
Regarding the alleged mala fide interests of the ECP, Chief Justice Isa observed that an independent analysis of the matter did not show anything which may suggest that the ECP acted in a mala fide manner.
"The mala fide allegation was further dispelled when it was noted that ECP had also issued similar notices to other political parties. When the ECP first took notice that intraparty elections had not been held in the PTI, it was in the federal government and in the provinces of Punjab and Khyber Pakhtunkhwa," the court held.
It explained that if certain provisions of the Elections Act were not applied to a particular political party or that intraparty elections were not a legal requirement and/or that there were no consequences for disobeying the law, including such political party becoming disentitled to get its election symbol, this would only be possible if it was first held that such political party was above the law.
The top court observed that it is clear from the record that ECP did not act arbitrarily nor contravene the law.
"The ECP persistently and repeatedly called for the holding of intra-party elections in the PTI. Initially, the pretext of the prevalence of the Covid-19 virus was used for not having held elections, and a year's extension was sought from the ECP. The ECP extended the period, which too expired, but still intraparty elections were not held."
The detailed judgment stated that PTI's case was completely different from the Benazir Bhutto case regarding facts and the law.
"First of all, the law under consideration is the Elections Act, which was promulgated by a democratically elected Parliament; in contrast, the offending amendments made to ROPA were made by an individual. Second, the Elections Act recognises the importance of political parties and requires that general elections be held on a party basis."
Third, the top court continued, the Elections Act seeks to strengthen political parties and mandates that intraparty elections be held in every political party.
"Fourth, to ensure that political parties are and remain democratic, their members must be given an equal opportunity to aspire to its political offices. Fifth, if a political party does not periodically hold intraparty elections, the consequences for not holding them are mentioned therein, which is the party not being eligible to get its election symbol. We are in complete agreement with the judgment in the Benazir Bhutto case. And, by relying upon the same reasoning, as employed therein, the significance of intraparty elections is also established."