Chief Justice of Pakistan (CJP) Qazi Faez Isa on Friday observed that democracy was a fundamental right, which should be present in both a country and a political party.

“Every citizen has a fundamental right to vote for a political party of its choice and every political party member has the same right too,” he remarked, adding that if this right was snatched then there would be “dictatorship on the national and local level”.

The observations came as a three-member Supreme Court bench — comprising the CJP, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali — took up the ECP’s petition challenging the Peshawar High Court’s (PHC) decision to restore the PTI’s iconic ‘bat’ election symbol. The proceedings were broadcast live on the apex court’s website.

On December 22, the ECP had decided against letting PTI retain its electoral symbol for the general elections, saying that it had failed to hold intra-party polls as per its prevailing constitution and election laws.

Subsequently, the PTI had approached the PHC against the ECP order on Dec 26 and a single-member bench restored the electoral symbol of the party till January 9 and directed that the case be fixed before a divisional bench.

On Dec 30, the electoral watchdog had filed a review application in the PHC, arguing that the court had overstepped its jurisdiction. Days later, in a major blow for the PTI, the high court had withdrawn the stay on the ECP order, stripping the party of its symbol again.

Consequently, the PTI moved the Supreme Court against the restoration of the ECP ruling. On Wednesday, the party had withdrawn the appeal as the matter was already being heard by the PHC.

The same day, the PHC had declared “illegal” the ECP’s decision to revoke PTI’s iconic ‘bat’ electoral symbol and reject its intra-party polls. In the short order, the PHC had termed the ECP order as “illegal, without any lawful authority and of no legal effect”.

According to the court, the PTI was entitled to the election symbol “strictly in terms of sections 215 and 217, read with any other enabling provision of the Elections Act 2017 and Election Rules 2017”.

A day earlier, the ECP had challenged the PHC’s decision to restore the PTI’s election symbol. Simultaneously, the PTI 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 in the case.

During the hearing today, ECP counsel Makhdoom Ali Khan contended that the PTI had held its intra-party polls “secretly” and the elections were not in accordance with the party’s documents. Upon being repeatedly questioned, he also assured the bench that no discriminatory behaviour had been adopted with the party.

Meanwhile, Justice Isa highlighted that the case was “time sensitive” with the February 8 general elections approaching, adding that the matter required “immediate attention”. The hearing was subsequently adjourned till 10am tomorrow.

PTI says has high hopes from SC

In a media talk after the hearing, PTI Chairman Barrister Gohar Ali Khan said that having an electoral symbol was every political party’s identity and a basic right as per the Constitution.

He noted that the PTI held its intra-party elections in a way that “none of the other 175 political parties have done”. Barrister Gohar alleged that the ECP had two glasses; one with which it saw all the political parties, and the other with which it saw the PTI.

He added that since 1960, no political party’s symbol has been withdrawn on the grounds that the election commission had put forward. “We have urged the SC to direct the ECP to conduct free and fair and transparent elections,” he said.

Barrister Gohar added that no one would trust the elections if they were held without Pakistan’s “most popular party”. “They will not accept your democracy. They will not accept the people that come after you,” he warned.

“We have issued tickets for 835 to 850 seats. If you make these candidates independent, you don’t care about democracy, you are holding the janaza (funeral) of democracy,” he claimed.

“We have hopes from the SC right till the end, whatever their observation may be. But it is the SC’s constitutional right, and we have very high hopes that this bench will overcome every conspiracy and save democracy from being derailed,” Gohar said, expressing hope that the apex court would let the PTI keep its bat.

The hearing

At the outset of the hearing, the ECP counsel came to the rostrum. When CJP Isa asked Makhdoom whether the PHC’s written order had been issued or not, the latter replied in the negative.

The lawyer then read out the PHC order that restored the PTI’s ‘bat’ symbol. He said that the ECP had not yet received “any notice” of the PHC order, to which the chief justice said, “I have not read the case file either.”

The top judge asked Makhdoom when he would be ready to present the case, at which the counsel urged the SC to adjourn the hearing till Monday. Makhdoom further said that the political parties would be allotted electoral symbols tomorrow.

Here, the CJP observed that to adjourn the hearing till Monday, the PHC’s recent verdict would have to be suspended, adding that the apex court was ready to hear the case on Saturday and Sunday as well. The ECP lawyer then sought time till tomorrow to prepare for the case.

Makhdoom recalled that the PTI was supposed to hold its intra-party polls in 2022 and that the electoral watchdog issued a notice to the PTI for not holding the intra-party polls according to its party constitution.

Here, Justice Mazhar asked about the process for appointing the party’s CEC mentioned in the PTI’s constitution, to which the ECP lawyer said that Jamal Ansari was the previous party CEC, after which PTI Election Commissioner Niazullah Niazi took the role.

Upon the chief justice asking who were the other members of the PTI’s election commission, Makhdoom said “no member other than the CEC was appointed”.

However, when the CJP asked PTI counsel Hamid Khan if the same was true, the PTI counsel answered it was not. The top judge then inquired about the documents pertaining to the appointment of members of the PTI’s electoral body.

Here, the PTI lawyer said he had sought time to prepare for the case, adding that he would present arguments on the ECP’s appeal not being maintainable and not having the right to claim.

Makhdoom argued that the constitution of the PTI’s election commission for the intra-party polls was “not legally correct”. When CJP Isa asked Hamid if the ECP counsel’s claim was true, he replied in the negative.

Here, the PTI lawyer reiterated that the ECP’s appeal was not maintainable, at which the chief justice directed him to present his arguments first.

Hamid contended that the electoral watchdog could not file an appeal in the apex court as a “respondent has to file an appeal, not the election commission”.

Justice Isa asked whether the ECP could not “defend its orders”, to which the PTI counsel raised the question: “Can a judge file an appeal against its own verdict?”

At one point during the hearing, CJP Isa observed, “The election commission is not just a quasi-judicial body. It is a constitutional body.”

“It has two functions; one [is] regulating the affairs of political parties, which is an ongoing exercise, and the other is free and fair elections,” he added.

The chief justice said that customs collectors could also file appeals against their verdicts in high courts, remarking that the question of maintainability would then also arise on the PTI’s appeal before the PHC.

Hamid reiterated that an affected party could appeal verdicts but not the ECP, asking if a district judge could challenge its order being struck down. To this, Justice Isa noted that district judges were subordinate to the judiciary whereas the electoral watchdog was a “separate constitutional body”.

The PTI lawyer then referred to a past judgment where he said the SC had prevented a commission and the federal ombudsman from appealing their decisions, at which the top judge asked if such verdicts could be applied to constitutional bodies.

“Institutions constituted under the law and the Constitution cannot be alike. The election commission formed under the Constitution would use its powers according to the Constitution,” the CJP observed.

Here, Hamid contended that the ECP was not emphasising the Constitution but rather the Elections Act 2017.

“This will amount to virtually finishing off the constitutional body,” the chief justice remarked, adding that the PTI counsel was making a “very hypotechnical argument” for which he had no precedent.

Justice Isa noted that there was a “very clear line of demarcation” between the functions of a constitutional body and a statutory one, which he said was a “sub-constitutional body functioning under a statute”.

He remarked, “If they’re (ECP) doing their job, we won’t take over their job [or] how to do it [or] how better to do it.”

CJP Isa then again asked about the whereabouts of the documents about the appointments of PTI’s election commission members and sought the complete record of the case proceedings from the ECP.

In his arguments, Makhdoom, the ECP lawyer, stated that the commission had received 14 complaints against the PTI’s intra-party polls. When asked who had filed them, the counsel replied that the petitioners were PTI members.

At this point during the hearing, Babar’s counsel, Ahmed Hasan, came to the rostrum and told the court that his client was a founding member of the PTI and had served at “various positions” in the party.

The CJP wondered, “Then why is he not a PTI member?”, asking Hamid whether Babar had been expelled from the party. Justice Mazhar noted, “In my view, a founding member does not ever stop being one.”

The top judge also asked if Babar had joined another political party, to which the PTI counsel said, “This is a separate discussion that who is a founding member and who is not.”

When the chief justice asked Hamid if he was a founding member of the party, the lawyer replied that he was.

Babar’s counsel argued that the Islamabad High Court had declared that his client was a PTI member.

CJP Isa then wondered whether the PTI’s intra-party polls were held uncontested, responding to which the ECP lawyer said that there used to be three panels before but then an “announcement was made that all people have resigned and the elections were held uncontested”.

Makhdoom further added that there was no competition for any party position. Here, Justice Isa asked who Niazullah Niazi was, at which he came to the rostrum.

The top judge asked Niazi whether he thought that everyone being elected without contest was a “weird coincidence”. The PTI member stated that all position-holders of the party were elected without contest.

When the hearing resumed after a break at 1:40pm, the ECP lawyer once again came to the rostrum and presented its 64-page order on the PTI’s intra-party polls.

He argued that the intra-party elections were held “secretly” and the documents submitted by the party were “not in accordance with facts”.

The CJP then asked the ECP lawyer to explain the various provisions of the PTI’s constitution that dealt with the party’s appointments.

“PTI federal election commission shall be formed to conduct intra-party elections with a permanent secretary,” Makhdoom read out from the PTI constitution.

CJP remarked, “They’ve made a great Constitution. Everything has been mentioned here.”

Justice Mazhar then asked where the PTI’s permanent secretariat was, to which the ECP lawyer said it was not mentioned in the party constitution and read out an Islamabad address stated on a PTI letter.

When the CJP asked if the party currently had a secretary general, Makhdoom said it was a “grey area”. He said the role was held by Omar Ayub but the ECP “maintains that the previous secretary general, as per their record, Asad Umar, continues to be the secretary general on their record”.

Justice Isa further asked if Umar was still part of the party. The counsel replied that personal statements about quitting the party were present but there was “nothing on the record”.

The top judge then asked where the PTI’s intra-party polls were held, specifically asking whether they took place at someone’s house or at an office.

The PTI lawyer answered that they took place at Chamkani ground in Peshawar, at which the chief justice further asked if there was a notification available for the same. Here, Justice Hilali asked why the party conducted the intra-party polls in a “small, unknown village”.

CJP Isa noted that there was nothing on record as to where the elections were held in Peshawar, asking how PTI workers found out where to cast their votes. “Party workers should know where they can cast their votes,” he remarked.

“We had informed party workers on Whatsapp,” PTI’s Niazi replied. “We have a video, you can play it in court,” he added. However, the chief justice stated that the video could be played outside the court as the SC runs cases on the basis of documents.

At one point, Justice Isa also inquired about the result of the PTI’s 2022 elections. “Who was elected in these polls?” he asked Hamid. In his response, the PTI counsel said he would need to seek directions from his client on the matter.

Hamid added that the 2022 intra-party polls had been declared invalid by the election commission and the PTI subsequently held internal elections afresh within 20 days. At that, CJP Isa asked why the party had challenged the ECP order to reject the 2022 polls and at the same time also held new intra-party polls.

Coming to the rostrum, PTI Chairman Barrister Gohar Khan replied that the said petition was filed when the “ECP was trying to remove Imran Khan from the position of the party chairman”. But the CJP inquired why the party had filed similar petitions in the Lahore High Court and the PHC.

“The ECP passed an order, you challenged it in the LHC […] they made a five-member bench, then PTI’s Ali Zafar said the petition should be kept infructuous. Then how did you go to the PHC?” CJP Isa asked.

Hamid replied that the PTI approached the PHC after the elections were held and the ECP declared them null and void. “The reason is that when we held elections, we were not being provided security anywhere except Peshawar,” the counsel maintained.

“But the problem is that this is a time-related case. They [ECP] are not giving you a symbol, you want a symbol,” Justice Isa said, highlighting the urgency of the case.

Resuming his arguments, ECP counsel Makhdoom recalled that a single-member bench of the LHC had dismissed a petition against the election commission’s order to revoke the PTI’s electoral symbol. Here, the CJP asked Hamid if the party owned the petition, to which the latter replied in the negative and said the plea was filed by a candidate.

Turning to the commission’s counsel, the top judge asked: “As a general rule, court’s order of a high court by a learned single judge in the writ petition and another province’s court order in ICA [intra-court appeal], which takes priority?”

Makhdoom responded that both cases “stand more or less on the same plain”.

Further, he noted that the ECP has objected to the procedure of the appointment of the PTI’s incumbent chief election commissioner and said it was not informed how the change took place.

Here, the CJP noted that PTI’s earlier position was that its 2022 intra-party polls were in accordance with its constitution. “Some people were elected, what happens to those people? Were they heard? Are they conceding that the elections [of 2022] were not in accordance with the law?” he asked.

For his part, the ECP counsel said: “Before the ECP, they took the position that since you have pointed out all these defects, in order to cut the controversy short, we will recall those elections and hold elections afresh. That’s how the second elections came about.”

Justice Isa asked if the 2022 elections were also unopposed to which Makhdoom responded in the affirmative. “Sir, this has been going on since the time when the party was in administration. The first reminder to hold elections was issued on May 24, 2021,” the ECP counsel said.

He added that the PTI sought an extension on the grounds of Covid, after which they were given a year’s time to hold polls. Makhdoom also read out loud the letter issued to the party in 2021.

“You were overtly generous because they were in government. They are themselves accepting that Nov 1, 2020, is the target date and you said ‘take two years’,” Justice Isa said.

Here, Justice Hilali stated that a number of other parties were also given similar extensions on the pretext of Covid.

Upon being inquired why the 2022 elections were declared invalid, Makhdoom replied that “several provisions of the PTI constitution were violated” and “several of the persons were not appointed correctly”.

“See Makhdoom sahib, we wanted to see if your behaviour with them [the PTI] has hardened now for some reason, or your behaviour with them has been the same,” the CJP remarked, noting that the notices issued by the ECP showed that the commission wanted the party to hold elections.

“We wanted to see your attitude, whether it changed now or was the same,” Justice Isa reiterated.

At one point, the top judge also asked if the ECP had adopted discriminatory behaviour with the PTI, to which Makhdoom replied in the negative.

“Every citizen has a fundamental right to vote for a political party of its choice and every political party member has the same right too,” Justice Isa said, remarking that if this right was snatched then there would be “dictatorship on the national and local level”.

Justice Mazhar also inquired if the ECP was looking at the record of other political parties this way as well. “Yes my lord,” the ECP counsel responded, adding that 13 political parties had been delisted today.

“We just want to see if you have a pick-and-choose attitude,” the top judge remarked.

At one point, the bench asked if there was a certain law under which a political party was bound to publicly announce its internal elections. Makhdoom stated that the law says intra-party polls should be held in a fair and transparent manner.

“If in the middle, a party’s general secretary leaves, are there any rules for a temporary arrangement?” Justice Hilali asked.

At one point, the CJP noted that there were some technical things in the case. “But there is a fundamental thing: democracy. Democracy should be in the country and also in a party,” he said.

Justice Isa subsequently directed Makhdoom to read out the clause of the Elections Act which talks about the electoral symbol. The ECP counsel adhered. “Is it your case that the only reason political parties will comply with any direction of the ECP to hold elections is when you hold a stick in one hand? Or Is there some other mechanism as well?” the CJP inquired.

Makhdoom replied that if the ECP wanted to enforce Articles 208 and 209, then the elections should be in accordance with the constitution of a political party. He also read out several previous judgments in similar cases.

Meanwhile, the CJP asked about the foreign funding case and the final verdict. The ECP officials replied that show-cause notices had been issued and the case was being still heard due to collateral litigations.

As Makhdoom concluded his arguments, PTI counsel Hamid came to the rostrum. The CJP said the bench was prepared to sit for the hearing even on its holiday tomorrow (Saturday).

“The hearing will continue until the case is over. We want the conduct of general elections in the country,” the top judge remarked.

Meanwhile, the counsel for Akbar S. Babar, a PTI founding member, stated that he wanted to make some submissions. He contended that his client is still a member of the party but wasn’t provided with nomination papers for the intra-party elections.

Hasan further argued that Babar’s arguments were not heard in the PHC. Here, the top judge directed the counsel to present proof that Babar was still a founding member of the PTI. Justice Isa also sought documents from the PTI regarding Babar’s expulsion.

The CJP also remarked that the party could not force someone to contest in its internal elections. “If the party does not get the symbol, would you also not suffer?” he asked. In his response, Babar’s counsel said that he wanted the procedure to be followed as per the law.

“My grievance is that I was not given proper and equal opportunity to contest elections,” Hasan said. At that, the CJP asked Babar’s counsel why he was “bothering the PTI for so long”.

“Maybe the PTI is bothering us,” the lawyer said, recalling that differences between his client and the party surfaced over foreign funding.

“Are standing by choice or is there someone behind you?” Justice Isa inquired. “We are standing since 2014 sir,” Babar’s counsel asserted, adding that he had been persistently pursuing his political struggle irrespective of the circumstances.

Subsequently, the hearing was adjourned till 10am tomorrow. Narrating the order of the day, Justice Isa said the detailed reasons for the PHC order had not yet been provided.

“But since the matter is time sensitive and as the general elections are scheduled for Feb 8, 2024, in Pakistan, this matter requires immediate attention,” he added, directing the SC Registrar to inquire about PHC detailed order.

ECP petition

The ECP’s petition, submitted by former attorney general Makhdoom Ali Khan, argued that the PHC should not have proceeded with the case without first issuing a notice to the attorney general for Pakistan (AGP).

This procedural step was necessary because the legal question at hand pertained to the federal government, involving the interpretation of Article 17 of the Constitution and its relationship with the provisions of the Elections Act of 2017, it said.

The petition also highlighted that the PHC’s order conflicted with previous Supreme Court rulings, which have consistently discouraged high courts from intervening in the electoral process, which, as per the Constitution, was exclusively within the ECP’s jurisdiction.

The petition emphasised that the high court’s judgement effectively nullified key sections of the Elections Act and Election Rules by restricting the ECP’s constitutional and statutory roles in regulating and supervising intra-party elections of political parties. This interpretation contradicted the principles established in previous superior court rulings, it said.

Furthermore, it undermined the fundamental purpose of Section 215(5) of the Act, in conjunction with Rules 157 and 158, which aim to foster democracy, pluralism, and transparency within political parties by ensuring timely intra-party elections, it added.

Additionally, the PHC ruling disregarded the essence of Section 208(2) of the Elections Act, which is intended to guarantee equal opportunities for all party members to contest elections for any political party office.

It said the high court order not only rendered relevant provisions practically redundant but also enabled a political party to undertake “sham” intra-party elections without any checks and balances. This, the ECP’s petition said, was not only contrary to Article 17 of the Constitution but was also in conflict with the principles of democracy.

The petition also pointed out that the PHC’s order overlooked the fact that the Elections Act was enacted under a democratic government and led to the repeal of various election laws, some of which were established during times of extra-constitutional rule.

PHC seeks ECP response by Jan 16

Meanwhile, the PHC sought a response from the ECP on a contempt plea filed by the PTI for not implementing the court’s January 10 order that reinstated the party’s electoral symbol.

The petition had stated that the election commission had not “issued the certificate to PTI on its website” despite the high court’s directives, which amounted to contempt of court.

The party had accused the respondents of not “moving an inch” for the implementation of the PHC order and that they “willfully disobeyed the same”.

Today, Justice Shakeel Ahmed and Justice Waqar Ahmed presided over the hearing, during which Advocates Qazi Anwar and Shah Faisal Ilyas appeared before the court.

Subsequently, the court issued a notice to the ECP CEC and the secretary and sought a response on the implementation of its orders by January 16.

Additional reporting by Abdul Hakeem