A three-member bench of apex court, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa accepted appeal of Election Commission of Pakistan (ECP) filed against PHC order         PTI founder Imran Khan (right) and CJP Qazi Faez Isa. — AFP/Supreme Court of Pakistan Website/File 

ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) took a major blow on Saturday after the Supreme Court annulled the Peshawar High Court’s (PHC) January 10 order, depriving the former ruling party of its ‘iconic’ electoral symbol — bat — just days ahead of the general elections.

A three-member bench of the apex court, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Muhammad Ali Mazhar and Justice Musarat Hilali, accepted the appeal of Election Commission of Pakistan (ECP) filed against the PHC order.

The court announced the reserved judgment after a day-long proceedings telecast live on its website and YouTube channel after hearing the PTI counsels Barrister Ali Zafar and Hamid Khan as well as ECP counsel Makhdom Ali Khan.

The court, in its short order authored by CJP Isa, held that the observation of the judges that the provision of the law was absurd was uncalled for, particularly when no provision thereof was declared to be unconstitutional.

“Surprisingly, no declaration was sought, nor given, that intra-party elections were held in PTI, let alone that the same were held in accordance with the law,” said the short order.

The court held that 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 of holding of elections could not be claimed.

“We also do not agree with the learned [PHC] judges that the ECP did not have ‘any jurisdiction to question or adjudicate the intra-party elections of a political party’,” the court held, adding that if such an interpretation is accepted, it would render all provisions in the [Election] Act requiring the holding of intra-party elections illusory and of no consequence and be redundant.

The court converted the ECP petition into an appeal and allowed and set aside the PHC order and judgment and upheld the ECP order dated December 22, 2023.

The court noted that the ECP has been calling upon the PTI to hold its intra-party elections since May 21, 2021, and at that time the PTI was in the federal government and in some provinces, therefore, it could not be stated that the ECP was victimising the PTI.

“Nonetheless, we wanted to satisfy ourselves that the ECP had not acted mala fide or for ulterior reasons or that the PTI was discriminated against,” the short order said, adding that it transpired that the ECP had passed orders against thirteen other registered political parties which were far more severe than the order passed against the PTI; one such case, of All Pakistan Muslim League came before this court on 12 January 2024 and the order of the ECP, delisting the said political party, was upheld.”

The court noted in its order that the ECP wanted to ensure that the PTI holds intra-party elections, adding that mere production of a certificate stating that such elections were held would not suffice to establish that intra-party elections had been held when a challenge was thrown to such an assertion.

“Nor, in our opinion, should the ECP concern itself with minor irregularities in the holding of a political party’s elections,” the court held. However, in the instant case, the court noted that not even prima facie evidence was produced to show that a semblance of elections had been held.

The court further noted that 14 PTI members, with stated credentials, had complained to the ECP that elections had not been held adding that 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 the PTI.

“And, 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,” the short order said.

The court held that 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,” it said.

The court held that the ECP is a constitutional body and amongst its duties are those mentioned in the Constitution of the Islamic Republic of Pakistan, Article 219(e) of which stipulates that the ECP must also undertake such functions as prescribed by law, which would include those mentioned in the Act. Section 208 of the Act mandates that political parties must hold intra-party elections periodically, and that a period not exceeding five years elapse within two elections.

“It further stipulates that every member of a political party be provided with an equal opportunity of contesting election for any political party office.”

The court noted that PTI members were neither provided nomination papers when they went to get them nor were any intra-party elections held.

Incidentally, the court noted that 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 court further noted that neither before the LHC nor before the PHC any provision of the Act, including Section 215(5), was challenged.

The court noted that the ECP had issued a notice on May 24, 2021 to the PTI to hold intra party elections, which was followed by a show cause notice stating that Section 208 of Elections Act 2017 mandates that intra-party elections in the PTI must be held and it had been five years since the last one was held, and the commission stipulated the consequences mentioned in the Act, which would follow if elections were not held.

The PTI did not dispute that elections had not been held but submitted that because of Covid-19, the time for holding its intra-party elections may be extended by one year.

The court further noted that time was granted and the PTI was directed to hold intra-party elections no later than June 13, 2022, and told that “no further extension will be granted”. Intra party elections are stated to have been conducted by PTI on June 8, 2022; however, the ECP vide its order dated September 13, 2023 held that the PTI had ‘failed to hold transparent, just and fair intra-party elections’ and that, instead of invoking the provisions of Section 215(5) of the Act, “a lenient view has been taken with direction to the respondent party to hold its intra-party elections strictly in accordance with the prevailing party constitution, within twenty days positively” failing which it “would be ineligible to obtain an election symbol for elections”. The court noted that the PTI assailed ECP’s order before the LHC, which was initially heard by a single judge, but on PTI’s request for constitution of a full bench it was listed for hearing before a five-member bench.

While both these petitions were pending adjudication before the LHC, the PTI contended that it had conducted its intra-party elections on December 2, 2023, but it did not withdraw its writ petition in the LHC. A number of complaints were received by the ECP alleging that intra-party elections were not held in the PTI, and the ECP issued a notice to the PTI. A writ petition was filed before the PHC, and an ad interim order was obtained against the ECP that it should not pass a final order till the determination of the petition.

Subsequently, the petition was disposed of by the PHC by directing the ECP to decide the matter by December 22, 2023. The court noted that the ECP passed the order on Dec 22 in which it held that the PTI had not complied with the directions issued by the commission, and had failed to hold intra-party elections in accordance with party’s constitution, the Election Act and the Election Rules 2017 with the consequence that Section 215(5) of the Act would be attracted pursuant to which the PTI was ‘declared ineligible to obtain the election symbol’ which it had applied for.

The court noted that two PTI representatives filed another writ petition in the LHC against the ECP which was disposed of by a single judge on January 3, 2024, holding that the request could only be granted if Section 215(5) of the Act was declared ultra vires the Constitution but since the same was not challenged the relief sought could not be granted. It was also mentioned that a petition was pending in the PHC. An intra-court appeal was filed against the LHC single judge order, however, an LHC divisional bench upheld the order.

The writ petition No 81171/2023 and 332/2023 remained pending in the LHC. While the petition filed in the PHC did not disclose that the writ petition was pending before a five-member LHC bench, even though it pertained to the same matter i.e. holding of intra-party elections, the petition filed before the PHC was not maintainable because the same issue of intra-party elections had already been assailed by the PTI before the LHC, the short order further said. The court noted that 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.

Earlier, the court after hearing the arguments of counsel for the parties had reserved the judgment while Justice Qazi Faez Isa had said that the bench after consulting with each other will announce the decision and later the staff of the court informed that the judgment will be announced at 9:30 pm. The court, however, reassembled at 11:15 pm and announced the short order. The contention on Intra-party elections started with the ECP’s December 22, 2023, decision of the election commission, barring the PTI from keeping its electoral symbol for the upcoming February 8 elections, citing irregularities in their intra-party polls that did not comply with the party’s own constitution and election laws.

This prompted the Imran Khan-led party to challenge the revocation of their symbol in the PHC. A single-member judge granted temporary relief, reinstated the bat symbol, and referred the case to a larger bench for a hearing on January 9. Then, on December 30, the polling body challenged the PHC’s jurisdiction over the matter. However, in a dramatic turn of events, the PHC reversed its earlier decision and upheld the ECP’s order. Facing the prospect of losing its iconic cricket bat symbol for the upcoming elections, the PTI took its fight to the highest court in the land — the Supreme Court. However, in a strategic move, they later withdrew their appeal, hoping for a favourable outcome from the PHC.

Later at night on Saturday, after the apex court verdict, the PTI announced its candidates would contest elections independently. “All PTI candidates will contest independently. We will issue a list of all our candidates with their election symbols,” PTI’s now-former chairman Barrister Gohar Ali Khan told journalists at the Supreme Court in Islamabad. The electoral symbol is crucial to any political party as voters are aware of which candidate to vote for on polling day; however, since the PTI does not have a unified symbol now, it might lose votes due to confusion among the people. Moreover, the party’s plan to issue tickets on the Tehreek-e-Insaf Nazriati’s (PTI-Nazriati) symbol also backfired as the latter’s chairman “backed out” of a deal. Even if the PTI-Nazriati had agreed to issue tickets, the ECP, following PTI’s move, took notice of “deceiving attempts” by some candidates through their applications. It clarified that the electoral symbol of another political party would not be allotted to candidates whose affidavits contradict their original party affiliation. Billing the Supreme Court verdict as extremely disappointing, Barrister Gohar announced they would go for the review of it and at the end of the day, the party’s poll symbol will be restored.

Talking to reporters after the apex court judgment, he claimed that though the bat symbol had been taken away, 10 million voters were with the PTI and vote for it on February 08. However, he said that they had their strategy, already thrashed out, sensing the outcome of the matter in the last few days. He charged that the latest SC verdict was a new addition to the unpopular and controversial saga of judgments, adding a party that enjoyed support of 70 percent people, was knocked out on merely technical grounds. Gohar insisted that the judiciary has to safeguard rights of everyone and despite accepting the verdict, they would go for a review. He said their candidates, who had already filed nomination papers, would contest as independents. He regretted that 14 petitioners, who had never been his party members, have trampled the rights of 25 crore people, saying at present over 12 crore voters are registered, 10 crore support the PTI and they would vote for their party on the call of Imran Khan. Barrister Gohar said that the decision was given on technical grounds. “This [SC] decision will deprive us of the bat, 227 additional seats have been lost. Our candidates will contest the election as independents, and this will start corruption whether there will be election of prime minister, speaker or the Senate,” he emphasised. Earlier, Senator Ali Zafar of PTI said the decision of the high court has been nullified and bat taken away; now history will decide about the decision. “We knew this, the future strategy has been made and there is nothing to worry about,” he claimed. He said preparations should now be made for the elections, fixed for February 8, which is the next phase now. He added the PTI would fight the elections vigorously, the party has not been erased, only the election symbol has been taken away. “Our candidates have not been stopped from contesting the election and we will form the next government,” he hoped.

Separately, PTI founding member and ex-information secretary Akbar S Babar welcomed the apex court verdict and said that the Supreme Court has given a historic decision and that this will set a new direction for Pakistan’s democracy and political parties. “When the detailed decision comes, it will improve things in terms of intra-party elections and workers who are jailed and face violence. They will have a say in leadership’s election. For the first time, so much awareness has been created about the importance of intra party polls.” He insisted all political parties would have to join the process of strengthening democracy and for this, they would have to conduct from now on, credible intra-party elections.

Meanwhile, Pakistan Muslim Legaue-Nawaz (PMLN) senior leader Khawaja Asif said that the PTI founder would have to bear the brunt of handing over the party to lawyers. Speaking on a private TV channel, the former defence minister said, “Now the time has changed, and the courts have become independent and started to deliver justice. They [PTI] used to believe that they would continue to rule forever.” He said, “An attempt was made to resort to the fake tactics by moving the PHC.”