Farooq Naeem—AFP
The Supreme Court on Saturday night, in a unanimous verdict, upheld the Election Commission of Pakistan (ECP)’s withdrawal of the Pakistan Tehreek-e-Insaf (PTI)’s electoral symbol, setting aside a Peshawar High Court (PHC) ruling declaring the order “illegal” and accepting the appeal filed against it by the electoral body.
Announcing the verdict, Chief Justice of Pakistan (CJP) Qazi Faez Isa noted that the party had failed to prove even a semblance of intra-party elections was held, adding challenges to it were posed by members of the party with longstanding affiliation to it. Stressing the ECP should not interfere in minor technicalities of intra-party polls of political parties, he said the instant case was different.
He said the judges did not agree with the PHC ruling declaring the ECP lacked the authority to take the step, stressing that would render Article 215 of the Election Act irrelevant. He also said there was insufficient evidence to support the PTI’s claim it was being treated unfairly and singled out over its intra-party polls by the ECP. He further maintained the allotment of an electoral symbol was reliant on the conduct of intra-party polls and a failure to hold these rendered the expectation of receiving an electoral symbol irrelevant.
The verdict was delivered at 11:15 p.m.—after the conclusion of proceedings around 7:30 p.m.— on an ECP petition challenging the PHC decision to restore the PTI’s ‘bat’ election symbol. It was announced after two days of hearings conducted by a three-member bench headed by the CJP and comprising Justices Muhammad Ali Mazhar and Musarrat Hilali.
During proceedings, the CJP observed that a violation of the PTI’s party constitution was “proved” to the extent of the chairman’s election. “The PTI’s constitution says the chairman shall be elected every two years while other [members] every three years. Violation of the party constitution is proved to this extent,” he remarked in proceedings broadcast live on the Supreme Court’s official YouTube channel.
Taking up the case on Friday, the CJP had acknowledged it was “time sensitive” due to the ECP’s election schedule, adding the court was willing to conduct hearings on Saturday and Sunday, if necessary, for it to be concluded. During the first day, ECP counsel Makhdoom Ali Khan advanced his arguments, contending the PTI had held “secret” intra-party polls that were in violation of its own constitution. He also stressed that the ECP was hearing similar petitions against 20 other parties and the PTI was not facing any discrimination. During the proceedings, the court had repeatedly urged the PTI to provide documentary proof of the withdrawal of Akbar S. Babar’s party membership, as he had earlier challenged its intra-party polls as a founding member.
As the hearing commenced on Saturday, Justice Mazhar noted there were two questions before the court: whether the Peshawar High Court (PHC) had jurisdiction, and whether the ECP has the authority to investigate intra-party polls. To this, PTI counsel Ali Zafar argued neither the Constitution nor the Elections Act, 2017 had granted the electoral watchdog the right to review a party’s intra-party elections.
Maintaining Article 17 of the Constitution placed contesting elections with an electoral symbol as among a political party’s fundamental rights, he argued depriving any party of the same would be violate the Constitution. He further maintained the ECP was “not a court” and could not guarantee a fair trial. He also asserted that no PTI member had challenged the intra-party polls, reiterating that Babar was not an active party member.
The CJP remarked that the basic question was that of democracy, not complete implementation of the party constitution. “It should at least be seen that [intra-party] elections were conducted,” he said, reiterating that without documentary evidence of his removal, Babar was a member “even if disliked” by the party.
The bench also noted that the ECP had issued notice to the PTI over the intra-party polls when the party was in government. Justice Mazhar then remarked that the party had asked for a level-playing field and should have granted the same to its party members wishing to contest elections.
“Nowadays everyone uses the word establishment, the real term is Army. We should talk openly and fully,” Justice Isa said, adding he respects constitutional institutions.
Justice Mazhar noted any irregularities identified by the ECP were from the PTI constitution itself, to which Zafar replied the ECP has not identified any irregularities in the election schedule and venue. Justice Isa observed that if the PTI had let Babar contest the intra-party elections, dismissing his complaints, he would have lost anyway if he lacked support. “The PTI founder is facing a trial in jail; if he comes out of jail tomorrow and wonders who these officials are, then what will happen?” the CJP wondered of the new office-holders.
“If the elections were conducted in a regular manner, then the election symbol should be given in any case,” Justice Isa remarked, cautioning not to get involved in the complications of the elections. “Just tell me whether all party members got an equal opportunity in PTI’s intra-party elections or not,” he said. “The ECP cannot be shown a piece of paper and be told that elections were held.” Justice Hilali also observed that the certificate of polls was subject to the election process according to the party constitution.
Justice Hilali also asked Zafar whether the PTI had published the nomination papers for its intra-party elections on its website, questioning how people were supposed to know these were the nomination papers, as well as when to submit them. When the CJP sought confirmation of the nomination papers’ presence on the website, Zafar said they were removed from the website once the intra-party elections had concluded.
At one point, the CJP asked Zafar to provide Imran Khan’s nomination letter in favor of Gohar, which he was informed did not exist, as the decision was announced before media. “If Imran Khan says tomorrow he did not give this nomination, then what will happen?” the judge questioned.
There was also some disgruntlement when PTI’s Election Commissioner, Niazullah Niazi, accused the CJP of insulting him and alleged he had done the same when interviewing his to obtain license to practice as a lawyer. “I have been appearing before you for the past three years. I know why this is happening to me,” he said. “If you want to maintain this attitude, we won’t even hear the case. If you want to tarnish the reputation of institutions by blaming them, go ahead and do it,” the CJP remarked, forcing Zafar to intervene and apologize on Niazi’s behalf.
On the matter of the PTI conducting its intra-party polls near Peshawar, Zafar said the party had wished to hold them in Islamabad but could not arrange a suitable venue. He said the ground in which the elections were held was right next to the party’s office, adding this information was made available to media.
“When Akbar S Babar came, the polling time had already ended,” Zafar said. “We wouldn’t have had any reservations if he wanted to contest the elections,” he added.
After hearing arguments from all counsels, the CJP remarked that he would consult his co-judges before issuing a verdict. “Both sides argued the case well. We will have a discussion. Let’s see what we come up with; can’t say anything yet,” he said, as the bench took a break.
Petition
Last month, the ECP had withdrawn PTI’s electoral symbol of a cricket bat, maintaining it had failed to hold intra-party polls as per its constitution and election laws. The PTI had subsequently appealed the order in the PHC, with a single-member bench suspending the ECP decision, restoring the electoral symbol, and directing for the case to be fixed before a division bench on Jan. 9.
Prior to the hearing, the electoral watchdog filed a review application in the PHC, arguing the court had overstepped its jurisdiction. The PHC then withdrew the stay on the ECP order, once again stripping the party of its symbol. The PTI then approached the Supreme Court for the restoration of its electoral symbol before withdrawing it as the matter was already pending before the PHC. The same day, the PHC issued its ruling declaring the ECP’s order “illegal” and again restoring the PTI’s electoral symbol. In its short order, the PHC termed the ECP order “illegal, without any lawful authority and of no legal effect.”
The ECP subsequently challenged the PHC decision, as the PTI simultaneously initiated legal action in the PHC, filing a contempt petition against Chief Election Commissioner Sikandar Sultan Raja and other ECP members for not implementing the high court’s order to restore the electoral symbol.