• PHC judge asks ECP to restore party’s electoral symbol, publish certificate of intra-party polls
• Chairman Gohar Ali Khan lauds court, says ECP has ‘acted like an adversary’

PESHAWAR: In another legal victory for the PTI, the Peshawar High Court on Tuesday suspended an order of the Election Commission of Pakistan (ECP), which had declared the former ruling party’s intra-party polls ‘void’ and revoked its electoral symbol last week.

Justice Kamran Hayat Miankhel pronounced a short order on a petition, jointly filed by PTI Chai­rman Barrister Gohar Ali and six other leaders, requesting the court to declare the Dec 22 verdict of the ECP without jurisdiction.

“In the meantime, the impugned order dated Dec 22, 2023, is suspended with further direction to the Election Commission to publish the certificate [of PTI’s intra-party polls] on its website and restore the election symbol of PTI. This order will be operative till Jan 9, 2024,” the single-judge bench ordered, while issuing notices to the respondents, including the ECP.

“…as elections are sche­d­uled to be held on Febr­uary 8, 2024, and the last date for allotment of election symbols is Janu­ary 13, 2024, so keeping in view the urgency, that a political party had been denuded of its symbol, meaning thereby that asp­i­rants from general public who were willing to vote for the petitioners’ party were divested of their right to vote as per their choice,” the judge wrote.

Following the order, the PTI termed it a historical decision, vowing that the people of the country would bring the most peaceful and unprecedented revolution in history through their power of vote on Feb 8 by bringing the PTI to power with a thumping majority.

In a statement issued by the party’s central secretariat, a PTI spokesperson said that the provincial court provided solid support to the supremacy of the Constitution, rule of law, survival and continuity of democracy and people’s right to vote in the country through its significant decision, which would have a far-reaching impact on the political horizon of the country.

Court proceedings

A panel of senior lawyers appeared for the petitioners, including Barris­ter Syed Ali Zafar, Qazi Muhammad Anwar, Barr­ister Gohar Ali, Ahmad Awais, Dr Babar Awan, Sher Afzal Marwat, Shah Faisal Uthmankhel, Ars­had Ahmad, Syed Sikan­der Hayat, Inam Yousa­fzai, Ali Zaman, Mashal Yousafzai, and others.

While nobody turned up for the ECP, the federal and Khyber Pakhtunkhwa governments were represented by Additional Atto­rney General Sanaullah Khan and Additional Advocate General Danyal Chamkani, respectively.

Advocates Naved Akhter and Jehanzeb Shinwari appeared for one of the respondents Jehangir Khan, a resident of Charsadda, who was also a petitioner before the ECP against the PTI’s intra-party polls.

The PTI lead lawyer Barrister Syed Ali Zafar argued that the ECP had no jurisdiction to decide whether an intra-party election, held on its direction on Dec 2, was according to the party’s constitution or not.

Barrister Zafar argued that as per section 208 (5) of the Elections Act 2017 if a political party failed to conduct intra-party polls as per the given time frame in their constitution, a show cause notice should be issued to such political party, and if the party fails to comply with the directions of the ECP, then the commission should impose fine which may extend to Rs 200,000 but should not be less than Rs 100,000. He contended that in no case the ECP could declare the intra-party elections of the political party illegal.

“As per section 209 of the Elections Act, 2017, the elections were held and the certificate was presented as per Form-65, but the Election Commission instead of publishing the certificate on its website, issued show cause notice to the petitioners, asking why their elections should not be declared illegal, as they had not been conducted as per their political party constitution,” he stated.

Barrister Zafar further argued that the impugned order was passed by the ECP in haste. He added that none of the petitioners before the ECP were members of the PTI and they had no legal position to challenge the party’s polls.

AAG Sanaullah Khan requested that the petition be fixed before a division bench after the court’s winter vacation, which would end on Jan 8. To a query put by the bench about the number of political parties in the country, he stated that 175 parties had been registered with the ECP.

Justice Miankhel asked whether any other political party had also been issued any notice by the ECP. The AAG argued that the ECP had the mandate to declare intra-party polls illegal if they did not conform to a party’s constitution. He opposed giving interim relief to the petitioners arguing that suspension of the ECP’s order amounted to giving a decision over the entire petition.

The bench observed that the ECP’s order would “completely oust” a political party from the polls and if tomorrow the court decided that the impugned order was illegal then what would happen? Advocate Naveed Akhter also opposed the petition, stating that the ECP had the powers under the Elections Act to declare intra-party polls of a party ‘void’.

‘Most popular party’

Following the court’s verdict, PTI Chairman Barrister Gohar Ali Khan and Barrister Ali Zafar, in a media talk, lauded the PHC, stating that the court had provided relief to the “most popular political party” in the country.

Barrister Gohar termed the court’s order of immense importance, stating that they had filed priority lists of candidates for 225 reserved seats for women and non-Muslims across the country and without the election symbol the fate of those candidates was uncertain. “While I do not want to say anything against the ECP; in the instant case, it has acted like a rival party and not as a neutral judge,” he said.

Barrister Zafar said that they had a firm belief in the rule of law and for the same reason they had approached different courts to get justice.

Published in Dawn, December 27th, 2023