ISLAMABAD/PESHAWAR: Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa Friday observed that the Peshawar High Court’s (PHC) order restoring the Pakistan Tehreek-e-Insaf’s (PTI) election symbol ‘bat’ was prima facie flawed.
The chief justice gave this observation while heading a three-member bench that heard the Election Commission’s appeal filed against the Peshawar High Court’s order, reports Geo News. Justice Muhammad Ali Mazhar and Justice Musarrat Hilali were the two other members of the bench.
“The Peshawar High Court did not issue a declaration that the PTI’s intra-party polls were in line with the law. It just ordered that the PTI should be given its election symbol back. The Peshawar High Court’s decision is prima facie flawed,” he remarked.
Our correspondent Sohail Khan adds: Justice Isa said contesting election was the basic right of every citizen and political party and snatching this right will lead to dictatorship at the national and local level.
He asked the ECP counsel Makhdoom Ali Khan if the electoral body had subjected the PTI to discrimination.
He observed the Constitution guaranteed basic and fundamental rights to every citizen including the right to contest election and to vote for any political party as per choice.
“In democracy, it is the right of every citizen to exercise his right of franchise and to vote for his own choice, and at the same time, it is the right of member of any political party to vote as per his choice,” the CJP remarked.
He further observed that democracy was a fundamental right and it should be ensured in the country and in the political parties as well.
The court adjourned the hearing to Saturday (today) after hearing Makhdoom Ali’s arguments.
The court noted down in its order that the ECP had sought leave to appeal against the Jan 10 order passed by the Peshawar High Court, issuing some directions to it.
The court was informed that the high court had not yet provided the ECP with detailed reasons but since the matter was sensitive, immediate attention was required.
The court asked Additional Attorney General Chaudhry Aamir Rehman if he could assist it on the matter.
The court also asked PTI’s counsel Barrister Ali Zafar to come to Islamabad and join the proceedings. Ali was on the video link from the Lahore Registry.
The court order noted that Hamid Khan, counsel for PTI, had objected to the maintainability of the ECP’s appeal and he will argue in detail on Saturday (today).
The court also asked the counsel for Akbar S Babar to prove his membership of the PTI.
Earlier, commencing his arguments, Makhdoom Ali Khan submitted that the main contention of the electoral body was that the PTI intra-party elections were not held in accordance with its own constitution.
He submitted the PTI was required to hold the intra-party election in 2022 and the party had been issued a notice by the Election Commission for not holding the polls according to the PTI constitution.
The chief justice asked as to who could contest the party elections to which Makhdoom Ali replied that every member of the party could participate in the intra party election.
When Justice Muhammad Ali Mazhar asked about the process for appointing the party’s chief election commissioner, the ECP counsel replied that Jamal Ansari was the previous CEC and later on Niazullah Niazi took over the role adding that now Umer Ayub was the party’s secretary general.
The chief justice asked the counsel if Asad Umer had left the party. Makhdoom Ali replied that as per media reports, he had left the party.
The chief justice observed the Election Commission was a constitutional body and no one could interfere in its domain.
“The Supreme Court will not interfere in the domain of the Election Commission of Pakistan. However, if the ECP commits any unconstitutional act, then the court can look into it,” the top judge added.
“The two major functions of the ECP are to regulate the affairs of political parties and the other function is to ensure the holding of fair and transparent election as required by the Constitution,” the CJP added.
Makhdoom Ali Khan said the ECP had received 14 complaints against the PTI’s inter-party polls and added that the complaints were filed by PTI members.
The chief justice asked the counsel as to how many members were present during the PTI intra-party elections. Khan replied that it was not in his knowledge.
The court was told that the intra-party elections were held at the cricket ground in Rano Ghari, a village in Chamkani, Peshawar. Justice Musarrat asked why the intra-party elections were held in this small village.
The chief justice asked how the party members were informed about the intra party elections. Gohar replied that all the members were informed through WhatsApp.
To a query, he informed the court that the last polls of the PTI were held in 2022 which were set aside by the ECP.
Hamid Khan, counsel for PTI, however, submitted that as per direction of the ECP, the elections were again held within 20 days.
“Whether the decision of the ECP was challenged anywhere?” the CJP asked Makhdoom Ali Khan. The counsel replied that it was challenged in the Lahore High Court which was then referred to a larger bench but there was no decision yet on the matter.
The chief justice asked Hamid if the party had withdrawn the petition pending with the Lahore High Court. Hamid replied that the high court was informed that the matter had become infructuous.
Barrister Gohar, Chairman PTI, told the court that the ECP had launched a case for disqualifying the founder chairman of the party adding that the LHC was prayed to take up both the election matter of the party as well as the matter of disqualification of the party founder chairman.
The chief justice wondered as to how they approached the Peshawar High Court when the matter was pending with the Lahore High Court.
Barrister Gohar replied that as the intra-party elections were held in Peshawar, the Peshawar High Court was approached. However, Hamid Khan told the court that the elections were held in Peshawar, as no security was provided to the party in other provinces.
When the chief justice repeatedly asked as to why the party approached the Peshawar High Court, Hamid Khan submitted that the issue of level playing field to the party was pending with the Supreme Court adding that as arrest of party workers continued everywhere, the party chose to approach the Peshawar High Court.
Makhdoom Ali Khan contended that the impugned short order passed by the Peshawar High Court was liable to be set aside, as it was handed down without first issuing notice to the attorney general for Pakistan under the mandatory requirements of Order XXVII-A, Rule 1 of the Code of Civil Procedure, 1908 (“CPC”).
He submitted that the writ petition number 6173/23 before the high court clearly involved, inter alia, interpretation of Article 17 of the Constitution and the question whether the ECP’s Order of 22/12 was violative of Article 17 of the PTI.
Makhdoom Ali Khan submitted that the ECP in its first letter issued on May 24, 2021 had told the PTI when it was in power to hold intra-party elections but it could not do it due to the corona pandemic and later on the ECP extended it to one year.
The counsel said the ECP then sent a reminder under Sections 208 and 209 of the Election Act under which a political party was required to hold intra-party elections according to its constitution.
“This argument has a weightage that despite being in power, the ECP issued a notice to the PTI,” the CJP remarked.
At one point, the chief justice asked the counsel if the other parties had also been treated by the ECP similarly. “Whether discrimination is being meted out to PTI”, the CJP asked the counsel. Makhdoom Ali Khan replied that the electoral body was determined to provide a level playing field to all the political parties.
Meanwhile, the counsel for Akbar S Babar, founder member of PTI, submitted that the Peshawar High Court neither issued his client a notice nor heard him, claiming that he was still the PTI member. The counsel alleged that his client went to the party Secretariat for getting nomination papers, but he was denied adding that neither his client had resigned nor he had joined any other political party but the PTI told the Peshawar High Court that he was not the party member.
The counsel submitted that the party’s old constitution carried the name of his client. The chief justice asked the counsel if his client stood against the party or someone was on his back.
“I am fighting alone and I am fighting for the cause of regulating the affairs of the party and maintaining the principles, enshrined in the party’s constitution”, the counsel contended. The court asked the counsel to prove the PTI membership of his client.
The court also directed its office to take information from the Registrar Peshawar High Court pertaining to the court’s detailed judgment on its order passed on January 10, 2024.
Meanwhile, the Peshawar High Court (PHC) Friday issued notices to the Election Commission of Pakistan (ECP) for not uploading the certificate to the PTI on its website despite the court orders. The PTI Thursday filed a contempt of court petition against the ECP on Thursday. It took the plea that the PHC had overturned the ECP’s earlier decision of invalidating the party intra-party elections and depriving it of the electoral symbol “bat’.
A two-member bench of the PHC — consisting of Justice Shakil Ahmad and Justice Waqar Ahmad — heard the petition. Qazi Muhammad Anwar and Shah Faisal Ilyas appeared in the court for the PTI. They submitted to the court that the ECP had committed contempt of court by not publishing the certificate of the PTI on its website.
They argued that the PHC had invalidated the ECP decision of December 22, 2023 and directed the Election Commission to publish the party certificate on its website as per Section 209 of the Election Act 2017. They said 24 hours had passed but the certificate was yet to be posted on the ECP website which amounted to contempt of court.
The PTI lawyers requested the court to initiate the contempt of court proceedings against Chief Election Commissioner of Pakistan Raja Sultan Raja, secretary and other members of the ECP. The court issued notices to the ECP asking it to submit a reply by January 16. Also, PTI’s senior leader Barrister Gohar Ali Khan on Friday said in categorical terms that if the upcoming elections were not transparent, no one would accept the results.
Talking to reporters here, he said democracy required that every political party should have an election symbol and “we hope to get our symbol from the Supreme Court as we conducted the best intra-party elections”. He said if the elections were not transparent, no one would accept them. Orders should be given to the Election Commission for transparent elections. Hopefully, the Supreme Court will save democracy. Referring to the PHC order, he remarked: “We have also got relief from the judiciary.” He claimed that no one conducted as transparent intra-party elections as the PTI did. Commenting on the resignations of two senior SC judges, he said Justice Ijazul Ahsan and Justice Mazahar’s resignations were regretted. “They are making every effort, they are also going out of crease,” he said using a cricketing term while talking about rivals. Separately, PTI founder member Akbar S Babar claimed that the PTI was currently under the control of mafia and there was a need to rid it of the mafia. During a chat with the media after the hearing on the bat symbol in the Supreme Court, he said that today for the first time, the PTI lawyer recognized him as a founding member. Babar said they were determined to make the PTI an ideal party, adding that “we wanted to see this party as a role model institution so that an honest leadership could emerge”. He said the PTI was currently occupied by the mafia. The PTI had a year’s time, but it did not hold the elections.
