The Peshawar High Court (PHC) on Wednesday restored the Election Commission of Pakistan’s December 22 order which had deemed the PTI’s intra-party polls “unconstitutional” and revoked the party’s iconic ‘bat’ electoral symbol.

The verdict, reserved earlier in the day, was announced by Justice Ejaz Khan on ECP’s review petitions. The decision comes as a blow for the party which has alleged it is not being provided a level playing field in the run-up to the general election.

In case a party fails to obtain an election symbol through a judicial intervention, its candidates have to contest for the national and provincial assemblies’ seats as independents. In that case, it would not be possible for them to join the PTI, even after winning the elections, because they can only join a party duly enlisted with the ECP.

In that scenario, they may face pressure to join other parties, with no fear of losing their seats under the defection clause. The PTI has stated it will approach the SC against today’s verdict.

On December 22, the ECP had decided against letting PTI retain its electoral symbol for the February 8 election, saying that it had had failed to hold intra-party polls — which saw Barrister Gohar Khan becoming the PTI chairman — in accordance with its prevailing constitution and election laws.

Subsequently, the PTI had approached the PHC. On Dec 26, the PHC had suspended till Jan 9 the ECP’s declaration of the PTI’s intra-party polls as unconstitutional as well as the subsequent revocation of the ‘bat’ symbol. It had also noted that general elections were scheduled for February 8 and the last date for allotment of election symbols was January 13.

On Saturday, the electoral watchdog had filed a review petition in the PHC. At the previous hearing, ECP lawyers argued that the court had overstepped its jurisdiction by suspending the commission’s declaration on PTI’s intra-party polls and the subsequent revocation of its election symbol.

The written order issued by the PHC, a copy of which is available with Dawn.com, said that the PTI had challenged the ECP order but due to winter vacations, a divisional bench was unavailable to hear the plea.

“Therefore, to the extent of interim relief, the same was fixed and placed before a single bench of Dec 26 and the desired interim relief was granted to it,” it said.

It said that the ECP had argued that it was not provided an opportunity of hearing, while the interim relief granted to the PTI amounted to “grant of final relief which is not permissible under the law”.

The order said that the learned counsels for both the parties had raised substantial legal questions but the same could not be addressed by the court as the “main writ petition is pending adjudication before this court”.

It said that the decision to suspend the ECP order was being recalled as it was passed without providing any opportunity of hearing to the ECP, it amounted to “final relief for all legal, factual and practical purposes”, the aspect of its effectiveness beyond the court’s territorial jurisdiction was not taken into consideration, and it had hindered the “smooth process” of the election process.

“In view of the above, the interim order of this court passed in favour of the writ petitioner/PTI is hereby recalled/vacated and consequently the ECP is directed to proceed with the election process as per its constitutional mandate […],” the order said.

PTI to approach SC against PHC verdict

Speaking to the media outside Adiala Jail shortly after the verdict was announced, PTI’s Barrister Gohar Khan said he had met with party founder Imran Khan for consultation on party tickets.

Commenting on the PHC’s verdict, he said that it was the “biggest reflection of the ECP’s bias”. He said that the commission was “chasing the case” like it had never done so in the past.

“I think that taking away the ‘bat’ from PTI raises a question of legitimacy with regard to the election,” he said. “If you take away the ‘bat’, the world will not recognise your election,” he said.

“I think this decision was given in haste […] we will approach the Supreme Court against it,” he said. “So we urge the SC, that we will come to you tomorrow. Do us this kindness and listen to us,” he said.

At the same time, Gohar said the party would not boycott the election. “We will not go toward a boycott under any circumstances. We will urge the SC — the ‘bat’ is not necessary, give us some other symbol. The law says that political parties and their candidates need to have a common symbol, whatever it is,” he said.

He said that the SC would not let the matter go unnoticed. “I have more than 90 per cent faith that the SC will restore our ‘bat’,” he said.

‘Verdict huge setback for PTI’

Barrister Asad Rahim told Dawn News that the first step for the PTI would be to appeal the decision in the top court, in the event that the decision of the Division Bench of the PHC on January 9 also goes against the party.

He added that the SC had already affirmed the rights of political parties and their symbols in Benazir Bhutto’s case.

Speaking to Geo News, Pakistan Institute of Legislative Development and Transparency (Pildat) President Ahmed Bilal Mehboob said that the PHC’s original decision to suspend the ECP order was flawed.

“I thought it would be reversed, if not by the high courts then by the Supreme Court (SC) and that is what has happened,” he said.

At the same time, Mehboob expected the case to end up in the top court. “This is a very big decision. The PTI will suffer a huge setback and that is why the SC will finally decide it,” he said.

He said that keeping the facts of the case in mind, the PTI “showed haste” in conducting intra-party polls and did not properly conduct them. “If they had done so, then such a situation would not have arisen,” he said.

The hearing

At the outset of the hearing today, presided over by Justice Ejaz Khan, ECP counsel Sikandar Basheer Mohmand and PTI lawyers Qazi Anwar and Shah Faisal appeared in court.

PTI counsel Anwar stated that the ECP was not a judicial institution, adding that seeking court intervention for or against its own verdict constituted contempt of court.

He explained his absence in court yesterday, citing delays caused by security personnel stopping his vehicle at four different points. Anwar reflected on the changed circumstances today, stating, “During the tenures of Gen Ziaul Haq and Gen Pervez Musharraf, no one bothered my family, but I cannot say the same about the current situation.”

Justice Khan said the court had nothing to do with what was happening outside the court.

The PTI counsel inquired about the ECP’s authority to challenge a high court order. He pointed out that the ECP had not yet issued a certificate for PTI’s intra-party polls and expressed concern about the approaching deadline of January 9.

Anwar further questioned the ECP, seeking an explanation for the rejection of nomination papers for PTI candidates. In response, the judge affirmed, “We will ask them [the commission] about it.”

Anwar went on to claim that all parties, except the PPP, hatched a conspiracy to keep the PTI out of the electoral battle. He further asserted that the Constitution mandated free and fair elections.

For his part, the ECP lawyer noted that the PTI had secured a stay order against the commission’s verdict. “We have the authority to file a writ,” he said.

He clarified that the ECP did not delist any party, adding that while the PTI remained a listed party, it failed to conduct elections in accordance with the rules.

Explaining the decision to nullify the intra-party polls, the ECP counsel informed the court that the polls were declared null and void because “they were not according to the Constitution”.

After listening to the arguments, the court reserved its verdict.

ECP pleas

ECP’s counsel, Mohsin Kam­ran Siddique, had filed two applications in the high court.

In one application, the ECP requested the high court to accept its plea and recall the interim relief granted to the petitioners (PTI leaders) by a single-member bench on Dec 26. In the other, the commission has sought the formation of a two-member special bench to hear the matter.

It argued that the writ petition of the PTI came up for hearing before the high court on Dec 26 and the court passed an interim order without issuing notice to the ECP.

“The petitioners have sought interim relief for the suspension of the order of the commission dated Dec 22, 2023, as well as for publication of intra-party polls certificate on the commission’s website along with restoration of party symbol (bat). That the interim order referred herein above, in fact, decides the whole writ petition which amounts to granting of final relief,” the ECP said.

“That under Article 199 of the Constitution of the Islamic Republic of Pakistan, the High Court of a province is empowered to make an order directing a person performing within its territorial jurisdiction. The election symbol of the petitioner is to be allocated across the country, hence without conceding the impugned order, the same has prima facie been passed beyond the territorial jurisdiction of this Hon’ble Court,” it said.

The ECP also argued that issues raised in the PTI’s writ petition were exclusively within the commission’s purview and generally not subject to judicial review under Article 199.

“Even otherwise it is settled law that disputed questions of facts cannot be resolved while exercising jurisdiction under Article 199 of the Constitution. The Constitution unambiguously vests the powers and jurisdiction in the commission to make factual determinations in regard to the subject matter of the writ petition,” the ECP added.