PHC order sparks debate on legal procedure

KARACHI: With a debate raging on social media regarding the Peshawar High Court handing a stay order in favour of the PTI without hearing the ECP’s lawyer, legal experts have pointed out that it is not unusual for a court to deliver an interim verdict without the presence of the opposing party’s lawyer, including without notice and on the first date of hearing.

Supreme Court Correspondent for the Express Tribune Hasnaat Malik had tweeted on Wednesday that: “There will be several reasons against [the] ECP decision. But it could have [been] better if [the] PHC single judge [had] suspended the five-member commission’s order after hearing [the] other side”.

Talking to The News, constitutional lawyer Usama Khawar says: “It is not unusual for a court to deliver an interim verdict without the presence of the opposing party’s lawyer, especially at the initial notice stage of the hearing. This phase typically involves granting interim relief, commonly referred to as a ‘stay’, and it is not a requirement to hear the other party before making such a decision. In this case, the court did hear the Counsel for the Federation, and it is common for the ECP to be represented by the deputy attorney general in certain instances.”

He adds: “The decision may be attributed to the extraordinary circumstances, such as the impending general elections and the potential irreparable harm that the PTI could face under the given circumstances. Demonstrating irreparable harm is one of the key considerations for granting interim relief. Therefore, the court’s decision appears to align with legal norms and the urgency of the situation at hand.”

Barrister Ali Tahir agrees on these points and explains that “ad interim orders are usually made without notice, and at the first date of hearing, which of course are subject to modification after hearing the other side. It is a matter of routine for the high courts to suspend such orders”, adding that high courts and even a civil court “can pass ad interim orders, including without notice and on the first date of hearing. This power is routinely exercised in fit cases.”

Tahir gives a personal example: “I recently appeared for the PTI in a case where they had passed a directive against the PTI, and the high court suspended it on the first date without any notice to Pemra.”

What happens now? Lawyers and election experts say that the ECP can now choose to file either an intra-court appeal or an appeal with the Supreme Court to vacate the interim verdict given by the Peshawar High Court on Wednesday.

Khawar says that: “Technically, the ECP has the option to challenge this interim order by filing a petition for leave to appeal in the Supreme Court, similar to its recent move against the Lahore High Court’s interim order.”

He, however, is not convinced on whether the ECP should opt for this: “Whether the ECP should pursue this remedy raises considerations beyond mere legal technicalities. Given the accusations leveled against the ECP, particularly by the PTI, alleging a witch-hunt, the ECP must weigh the political propriety of challenging the interim decision. Filing an appeal against the interim decision may exacerbate perceptions of partisanship and bias, potentially strengthening the PTI’s narrative that the ECP is unfairly targeting the party.”

There is another option for the ECP too. According to Barrister Tahir, “The ECP may not challenge the order directly before the Supreme Court. Since the order has been passed by a single judge of the high court, it must first be impugned in an intra-court Appeal under the Law Reforms Ordinance. In my opinion, this is not an appealable order as it is an ad interim order, that is an order that has not disposed of the whole case, hence the remedy before the ECP is to argue the matter before the high court when it is relisted.”

Barrister Tahir summarises the Peshawar High Court stay order as: “The gist is that the order is appropriate in the circumstances as they exist in my opinion and that the ECP must argue the case before the high court when the matter is taken up again after winter vacations -- the 9th of January 2023 -- till when the order is operative for anyway.”

PILDAT President Ahmed Bilal Mehboob tells The News that in his opinion the ECP has enough grounds to go for an appeal to the high court or the Supreme Court to vacate the stay order: “I think the ECP has strong grounds to appeal against this in the Supreme Court. The ECP conducted a process under the Election Act, 2017. The high court did ask what authority the ECP had to withdraw the [PTI’s] election symbol. That authority has clearly been given to the ECP under the Election Act. Whether the ECP chooses to [go for an appeal] or not is their choice.”

Analysing the Peshawar High Court interim order, lawyer Abuzar Salman Khan Niazi -- who has been part of Imran Khan’s legal team on various occasions -- tweeted on Wednesday that a “High court under Article 199 has [the] power and jurisdiction to judicially review, suspended and set-aside decision/judgment of [the] Election Commission of Pakistan. This has been happening for the past many decades. There is nothing new about it. Even [the] Supreme Court recently recognised this position when [the] Balochistan High Court judicially reviewed the decision of [the] ECP.”

PTI lawyers and leaders seem convinced that their election symbol is safe. Advocate of the Supreme Court and PTI leader Salman Akram Raja had on Wednesday night spoken to journalist Hamid Mir on Geo’s Capital Talk and said that in his opinion “The bat is safe. [This can change ] only if the Supreme Court intervenes against this interim order and gives a verdict against it. I don’t see any other way to deprive the PTI of its election symbol.” According to Raja, he does not see that happening, though: “I don’t think the Supreme Court will do anything of this kind at this stage.”

One of the PTI’s success stories has been its social media strategy, Hasnaat Malik tells The News: “I feel that the PTI has successfully used its social media strategy and built enough pressure for it to get relief from the courts.”