ECP, PTI lawyers battle it out in SC

ISLAMABAD: The three-member bench of the Supreme Court — headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Muhammad Ali Mazhar and Justice Musarrat Hilali — heard the Election Commission of Pakistan’s (ECP) plea against Peshawar High Court (PHC) decision to give electoral symbol ‘bat’ back to Pakistan Tehreek-e-Insaf (PTI) for nine hours on Saturday.

During the course of hearing, PTI counsel Barrister Ali Zafar, while commencing his arguments, submitted that the ECP had no authority to review party elections.

Justice Isa then asked the counsel as to whether the electoral body had no authority to review the funding. Zafar replied that the issue of funding is different and can be scrutinised by the ECP.

The CJP observed that the power of scrutiny has been given to the ECP by law, not by the Constitution. Zafar contended that the Election Act 2017 is very clear regarding the sources of funding.

During the hearing, PTI senior leader Barrister Gohar Ali Khan told the court he had just received the information that his house had been raided, subjecting his son and nephew to torture, and taking away some documents.

Gohar had to leave the courtroom while the chief justice asked Additional Attorney General Chaudhry Aamir Rehman that this should not have happened, and if it happened then he should look into the matter.

Addressing Ali Zafar, Justice Isa said the ECP was saying again and again that PTI should hold intra-party elections. Zafar replied that the elections were held but they did not believe them. The CJP, however, observed that at present the matter was about the recent elections, and not the old ones.

Ali Zafar submitted that election symbol is the fundamental right of the PTI.

Meanwhile, when Barrister Gohar returned to attend court’s proceedings, the CJP asked as to what was the position. Gohar replied that the situation was very serious. Additional Attorney General Aamir Rehman told the court that he had talked to the home secretary and IG, and they were looking into the matter.

Barrister Ali Zafar submitted that the application was not made by the party in the LHC. But the petitioner was District Gujranwala president of PTI, Justice Mazhar told the counsel.

Ali Zafar submitted that according to the record, the LHC wrote that the matter was pending in the PHC, so challenge the ECP there. Therefore, we approached the PHC, adding that the second election held in Peshawar was also not accepted by the ECP. “But why did you go to Peshawar when the matter was going on in Lahore,” Justice Isa asked Ali Zafar. The PTI counsel replied if the two high courts are empowered to hear the case simultaneously, then either one can be approached.

The chief justice said that it will not be allowed to go to another high court if you do not get a stay from one place. Ali Zafar contended that the party was aggrieved by the ECP order. How can Barrister Gohar be stopped from approaching PHC?

The counsel said that the ECP had not annulled the party elections of any of the 175 political parties, adding that in the Humayun Akhtar case, the commission declared the party cannot interfere in the election case. He submitted that the ECP had declared the appointment of election commissioner as invalid, not party elections.

During the hearing, the chief justice asked for the police raid report on Barrister Gohar’s house. The PTI senior leader expressed satisfaction over the court order. Justice Mazhar asked as to whether the ECP had the authority to investigate the intra-party election or not. Zafar replied that neither the Constitution nor the Election Act allows the ECP to review the intra-party elections, adding that election symbol cannot be stopped due to intra-party elections. He submitted that Article 17 gives the power to form political parties in two ways, adding that the Supreme Court had also given a detailed interpretation of Article 17. He told the court that ECP’s behaviour towards the party was biased compared to other parties. He contended, relying on Article 22 and Article 25 of the Constitution, that the ECP had no authority to delve into a party’s internal matters and the details of intra-party polls.

He further stated that there was no election tribunal but the ECP itself declared the intra-party polls null and void, therefore, the commission could not move a high court to get its orders implemented. The power ECP assumed is akin to a civil court but the election commission is not the court of law, the lawyers said. Meanwhile, members affiliated with the PTI who appeared in the court in a personal capacity, complained that they tried submitting their nomination papers for the intra-party polls but they were told that only those who had been selected by the PTI founder Imran Khan could contest the elections. During the hearing, Section 215 of the Election Act 2017, on which PHC’s verdict was based, came under discussion. It was argued that the details of the intra-party elections have to be submitted to the ECP in writing following the polls, after which the commission determines if the party has conducted the process in line with the law. ECP lawyer Makhdoom Ali Khan, presenting his arguments, maintained that the PHC exceeded its authority, as the courts do not have the authority to render any section of the law or Constitution ineffective, but only parliament can do this through proper legislation. At this, the court also observed that the PHC went over the line. “How could the PHC declare any section of the Election Act redundant or called it absurd,” the CJP remarked. Moreover, the CJP questioned whether the PTI’s intra-party polls were in accordance with the law, rules and regulations. The former ruling party’s lawyer maintained that due process was followed as per the party’s constitution.

The court reserved the verdict after hearing arguments from PTI lawyers Barrister Ali Zafar and Hamid Khan, ECP lawyer Makhdoom Ali Khan, and Akbar S Babar’s lawyers, as well as some PTI members Yousuf Ali, Bilal Azhar Rana, Mahmood Ali Khan, Mohammad Muzammil Sandhu and Noreen Farooq Khan.