“APS did not issue a statement that PTI intra-party polls were in accordance with the law,” says top judge
- SC adjourns plea hearing against PTI 'bat' symbol till Saturday.
- CJP says PHC failed to declare PTI intra-party polls in accordance with law.
- “Whether you like it or not, we want surveys to be carried out in the country.”
ISLAMABAD/PESHAWAR: Chief Justice of Pakistan (CJP) Qazi Faez Isa on Friday said that the Peshawar High Court (PHC) order to restore the iconic 'bat' election symbol of the Pakistan Tehreek-e-Insaf (PTI) was prima facie, defective.
Heading a three-member bench comprising Justice Muhammad Ali Mazhar and Justice Musarat Hilali, the top judge approved these remarks during a hearing of the Election Commission of Pakistan (ECP) petition against the PHC verdict reinstating the electoral symbol of the PTI.
On December 22, the electoral commission banned the PTI party from maintaining its “bat” symbol for the upcoming February elections, citing irregularities in its internal polls that did not comply with the party's own constitution and electoral laws.
Following the ECP's decision to revoke its symbol, the PTI challenged it in the APS. A single-member judge granted temporary relief, reinstated the bat symbol and remanded the case to a larger court for a Jan. 9 hearing.
Then, on December 30, the electoral body questioned the PHC's jurisdiction over the matter. However, in a dramatic turn of events, the PHC reversed its earlier decision and upheld the ECP order.
Faced with the prospect of losing its iconic cricket bat symbol in the upcoming elections, the PTI took its fight to the highest court in the country – the Supreme Court. However, in a strategic move, they subsequently withdrew their appeal, hoping for a favorable outcome from the APS.
And the PTI got what it wanted. On Wednesday, the PHC declared the commission's order “illegal, without any legal authority and without legal effect.”
But the commission, dissatisfied with the high court's order on Thursday, challenged the decision in the high court, seeking its reversal. Later, the PTI also filed a plea before the PHC against election commissioner Sikandar Sultan Raja and other ECP members for not complying with the PHC order.
But during today's hearing, CJP Isa raised a pertinent question: did the apex court declare that the PTI's intra-party polls were in accordance with the law? “The question of assigning the bat electoral symbol comes later. “First, we will have to review the internal party elections.”
“The Peshawar High Court did not issue a declaration that the PTI's intra-party polls were in accordance with the law. He simply ordered that the PTI be given back its electoral symbol. The decision of the Peshawar High Court is prima facie wrong.
hearing
At the beginning 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 high court registry in Lahore.
Akbar S. Babar, the estranged PTI leader who initially contested the party's internal elections in the ECP, also appeared before the court.
Meanwhile, Gohar Ali Khan, who was elected PTI president 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 ambit.
“The Supreme Court will not interfere in the purview of the Election Commission of Pakistan. However, if ECP commits any unconstitutional act, the court can investigate it,” the top judge added.
The PTI lawyer requested the court to adjourn the hearing till Monday to prepare the case.
Given this, CJP Isa said the APS decision should be stayed for three days if the case is adjourned to Monday.
Meanwhile, ECP lawyer Makhdoom Ali told the court that electoral symbols will be allotted to candidates contesting the February 8 elections tomorrow.
Advocate Khan questioned the locus standi of the ECP 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 lawyer said it cannot stand in the eyes of the law, adding that the electoral body has the authority to issue electoral symbols to political parties.
CJP Isa observed that the ECP is a constitutional body that has two main responsibilities: dealing with the affairs of political parties and holding transparent elections.
“If the locus standi of the Election Commission is questionable, then questions will also be raised on the PTI's stand. [right to appeal] as to why the PTI moved the APS,” the CJP remarked.
CJP Isa said the ECP decision will become meaningless if it does not appeal the decisions.
Given this, PTI's lawyer Khan questioned whether a district judge can overturn his own decision.
The 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, do not compare a constitutional institution with a legal institution. The two judgments he referred to refer to legal entities,” CJP Isa told Advocate Khan.
The PTI lawyer maintained that every constitutional institution operates under the law and the Election Commission operates according to the law of the Election Act.
“We have taken note of your objection,” the CJP added.
After the court reconvened after the break, ECP lawyer Makhdoom Ali resumed his arguments.
The ECP lawyer maintained that the PTI intra-party elections were kept secret and that the documents submitted by the party regarding the polls were not consistent with the facts.
The CJP asked the ECP lawyer about former PTI general secretary Asad Umar who left the party after the events of May 9.
“Is there any resignation of Asad Umar? Has he been expelled from the PTI? the CJP asked.
However, the ECP lawyer expressed his ignorance saying that the electoral body does not have any information about Umar's resignation and added that the current PTI general secretary Umar Ayub signed the notification related to the PTI intra-party elections.
However, he said it is not known how Ayub became general secretary of the party.
After hearing the arguments of the ECP lawyers, the CJP observed: “It means that the PTI has violated its constitution.”
He further asked: “Where were the intra-party elections held? In a hotel or a cricket ground?
The PTI lawyer told the court that the party's intra-party elections were held in a small town near Peshawar.
“Why were intra-party elections held in this small town?” Judge Hilali asked.
The CJP highlighted during the hearing that members of each political party have the right to cast their vote.
“If this right is taken away, it would be considered a dictatorship at the national level and it would be a violation of rights,” he added.
The top judge asked if the ECP is investigating all political parties as it is doing in the PTI case.
Given this, ECP lawyer Makhdoom Ali maintained that to the best of his knowledge, all political parties have been asked about their intra-party polls.
The top judge stated that the PHC did not make any representation that the PTI's intra-party polls were in accordance with laws. He simply ruled that the 'bat' symbol should be handed over to the PTI, he added.
“What is the validity of the internal elections of December 2?” asked CJP Isa.
Babar's lawyer complained that PHC did not listen to him or make him a party to the case.
The lawyer said Babar is a founding member of the PTI and has been a member instead of joining another political party, but was not allowed to participate in polls within the party.
At this, the court sought proof that Babar was a founding member of PTI and sought a copy of the written order of PHC.
Meanwhile, the ECP lawyer said that the APS did not give notice to the attorney general, which is a mandatory practice in case of a constitutional matter. The high court did not hear several parties, he added.
At this point, ECP's lawyer concluded his arguments.
Then, the CJP remarked: “Whether anyone wants it or not, but we want elections to be held in the country.”
“The PTI will have to face the consequences if the polls within the party are not correct,” CJP Isa said before adjourning the hearing until 10am tomorrow (Saturday).
PTI's lawyer Hamid will begin his arguments when the hearing resumes on Saturday morning.
PHC issues notice to ECP
Meanwhile, the PHC issued a notice to the ECP over the PTI's plea seeking contempt of court proceedings against the electoral body for its alleged non-compliance with its order on intra-party polls.
A two-member bench comprising Justice Shakil Ahmad and Justice Waqar Ahmad heard the petition.
PTI lawyers Qazi Muhammad Anwar and Shah Faisal Ilyas appeared before the court.
The PTI maintained that the ECP did not publish the party's intra-party poll certificate on its website despite the PHC order.
The petition said that the PHC on Wednesday termed as illegal the ECP's decision of December 22, 2023, in which the latter invalidated the PTI's intra-party elections and deprived it of its “bat” electoral symbol.
The PTI asked the court to initiate contempt proceedings against the ECP for non-compliance with court directives.
