ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) filed a review petition on Tuesday against the Supreme Court’s January 13 order declaring its intra-party elections illegal.
The PTI prayed to the apex court to declare the Election Commission of Pakistan’s (ECP) verdict as “without jurisdiction, without lawful authority and illegal and liable to be set aside”.
Senior lawyers Hamid Khan and Ali Zafar have filed the petition in the top court making the electoral watchdog and the complainants in the high court as respondents.
The petitioner argues that “the Elections Act does not give any right, power or jurisdiction to ECP to adjudicate any dispute relating to intra-party elections or refuse to give it a common symbol on the basis of any alleged irregularity in the intra-party elections”. Therefore the party highlighted that “the Judgement under Review is also in violation of the fundamental right of fair trial (Article 10A)”.
The party argued that the Peshawar High Court’s (PHC) verdict on January 10 held that the “ECP lacks the power to decide intra-party election disputes, exemplifying that this decision can only be made after a proper trial in the court of law.” Therefore, the verdict passed by the PHC should be upheld.
The PTI feels “discriminated” by the ECP as ANP did not hold intra-party elections yet the ECP granted it the symbol and imposed only a fine. Moreover, out of “175 political parties, and throughout Pakistan’s history, ECP has never ever examined intra-party elections on the ground of any irregularity nor refused a symbol on that basis”.
Further grounds of arguments were established by the fact that a three-member bench led by Chief Justice Qazi Faez Isa and comprising Justice Muhammad Ali Mazhar and Justice Musarrat Hilali led the SC hearing. However, since the case involved constitutional questions, under the SC (Practice and Procedure) Act, it could only have been heard by a five-member bench but there was a “lack of jurisdiction”
SC January 13 verdict
The apex court verdict, authored by Chief Justice Isa, maintained that the mere production of a certificate by the PTI stating that intra-party elections were held could not suffice to establish that such elections had actually been held, particularly when some party members were challenging this assertion.
“In the instant case not even prima facie evidence was produced to show that a semblance of elections had been held. Fourteen PTI members, with stated credentials, had 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 the PTI and thus not entitled to contest elections, but this bare denial was insufficient, particularly when they had credibly established their long association with the PTI.”
The court noted that if any member of a political party is expelled, it must be done in accordance with Section 205 of the Election Act, 2017 “but no evidence in this regard was forthcoming”.
The verdict said these members of the PTI were not provided nomination papers when they went to get them nor were any intra-party 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,” the bench observed.
The SC declared the PHC’s comment that Section 215(5) of the Election Act, 2017 was “absurd” as “uncalled for”. It said the party had neither challenged any provision of the act in the Lahore High Court (LHC) nor the PHC, nor any provision of the act had been declared unconstitutional.
“Surprisingly, no declaration was sought, nor given, that intra-party elections were held in [the] PTI, let alone that the same were held in accordance with the law.
“If it had been established that elections had been held then [the] ECP would have to justify if any legal benefit to such a political party was being withheld, but if intra party elections were not held the benefits accruing pursuant to the holding of elections could not be claimed,” it said.
The court also disagreed with the PHC’s view that the ECP does 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 Election Act, 2017] requiring the holding of intra party elections illusory and of no consequence and be redundant.
“Therefore, for the aforesaid and detailed reasons to follow, this [ECP] petition is converted into an appeal and allowed by setting aside the impugned order and judgment of the PHC; resultantly, the order of the ECP dated 22 December 2023 is upheld,” the verdict said.
PHC January 10 verdict
The PHC on Jan 10 declared “illegal” the ECP’s decision to revoke the PTI’s ‘bat’ electoral symbol and reject its intra-party polls.
In the short order, the PHC said that the ECP order was “illegal, without any lawful authority and of no legal effect”.
The court instructed the ECP to publish the certificate submitted by the PTI after its internal polls on the commission’s website. Moreover, it affirmed the PTI’s entitlement to the election symbol in accordance with sections 215 and 217, along with other applicable provisions of the Election Act, 2017, and Election Rules, 2017.
The verdict was announced by a two-member bench, comprising Justice Ejaz Anwar and Justice Syed Arshad Ali, in response to a joint petition filed by PTI Chairman Gohar Khan and six other leaders. The petition sought the court’s intervention to invalidate the ECP’s order, arguing it was illegal and beyond jurisdiction.
On December 22, the electoral watchdog invalidated the PTI’s internal elections, resulting in the withdrawal of the party’s iconic ‘cricket bat’ symbol.
