• Judgement announced after delays says political party not discriminated against by poll watchdog
• Ruling reads ‘not even prima facie evidence’ produced to show intra-party polls were held
• ECP had to extend deadline for allotment of symbols several times due to delay in verdict

ISLAMABAD: In a late-night decision after holding a marathon hearing, the Supreme Court on Saturday upheld the Dec 22 decision of the Election Commission of Pakistan (ECP) depriving the Pakistan Tehreek-i-Insaf (PTI) of its iconic poll symbol — ‘bat’.

The decision was announced minutes before the expiry of the fifth extended deadline by the election watchdog for the intending candidates for the submission of party tickets. The three-member bench consisting of Chief Justice Qazi Faez Isa, Justice Muhammad Ali Mazhar, and Justice Musarrat Hilali anno­unced the judgement at 11:15pm, after a delay of several hours.

“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,” observed the CJP.

The hearing commenced at 10:00am on Saturday — a day when the court has never assembled to hear cases. The bench, which had taken up an appeal by the ECP challenging the Peshawar High Court (PHC) decision regarding the restoration of the PTI’s election symbol, took multiple breaks during the hearing.

The protracted hearing also affected the duties of the ECP staffers. Not only were they present in the courtroom at the time of the verdict, but they also had to extend their deadlines several times due to a delay in the court order. First, it was extended from 4:00pm then 7:00pm, then 10:00pm, later 11:00pm, and finally to 11:30pm.

The judgement also explained that ECP was a constitutional body and amongst its duties are those mentioned in the Constitution, Article 219(e), which stipulates that ECP must also undertake such functions as prescribed by law, which would include those mentioned in the act.

According to the court, the ECP did not act in a mala fide manner nor was the PTI discriminated against in the present case.

“It transpired that ECP had passed orders against 13 other registered political parties which were far more severe than the order passed against PTI; one such case, of All Pakistan Muslim League, came before this court on Jan 12, 2024, and the order of the ECP, delisting the said political party, was upheld,” said the ruling. According to the court, the mere production of a certificate stating that intra-party elections were held would not suffice to establish that the 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. However, in the instant case not even prima facie evidence was produced to show that a semblance of elections had been held,” said the judgement.

The order said, “14 PTI members, with stated credentials, had complained to 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 PTI…but this bare denial was insufficient… And, if any member of a political party is expelled it must be done by Section 205 of the Act, but no evidence in this regard was forthcoming.”

“Section 208 of the Elections Act 2017 mandates that political parties must hold intra-party elections periodically…every member of a political party be provided with an equal opportunity…,” the judgement said, regretting that these aforementioned members were not provided with nomination papers when they went to get them.

“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 judgement regretted.

“Neither before the Lahore High Court nor before the Peshawar High Court any provision of the [Elections] Act, including Section 215(5), was challenged,” the judgement recalled, adding that 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.

“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 polls were not held, the benefits accruing pursuant to the holding of elections could not be claimed,” the verdict said.

The Supreme Court did not agree that ECP did not have “any jurisdiction to question or adjudicate” such elections. “If such an interpretation is accepted it would render all provisions in the Elections Act requiring the holding of intra-party elections illusory and of no consequence and be redundant.”

Faisal Siddiqui, a senior lawyer at the Supreme Court, criticised the decision. “This decision in the ‘PTI bat symbol case’ will join the ranks of the notorious ‘Maulvi Tamizuddin case’ as a decision which, by hiding behind the smokescreen of legal technicalities, has fatally damaged democratic constitutionalism,” he said, linking the court order with that of ‘political engineering’ in 2018 polls.

‘Marathon hearing’

Earlier, PTI lawyer Hamid Khan, while concluding his arguments, cited Article 2A of the Constitution and highlighted that depriving the PTI from participating in the elections would “virtually mean depriving millions of voters” of their fundamental rights.

“This is a fundamental principle of jurisprudence that courts while interpreting constitutional provisions never ignore political consequences of its decision which may come back to haunt for years,” the counsel said.

“Such decision has the potential of adversely affecting the future of the country too since the assemblies elected from such elections will have no complete representation of the political parties and will leave any future government to be described as not legitimate,” said the PTI lawyer, while highlighting the consequences of the ECP’s decision to deny the PTI its electoral symbol.

Citing different judgements, the counsel contended that Article 17 of the Constitution always prevails, adding that on mere technicalities the parties should not be sent out of the election arena.

During the hearing, PTI counsel Ali Zafar argued that the ECP had made the former ruling party dysfunctional by taking away the election symbol.

The court also heard different complainants, including Akbar S. Babar and others, who apprised the bench that they were the ‘original members’ of the party and that they were denied the chance to contest intra-party polls.

Published in Dawn, January 14th, 2024