Symbol judgment: why the law matters

Without a doubt, the Elections Act, 2017 and Article 17 of the constitution, which has been amended four times since 1973, recognize that everyone has the right to organize into groups or unions, subject to any reasonable restrictions imposed by the law in the interest of public order, morality, or Pakistan’s sovereignty or integrity.

Accordingly, under Article 17(3) of the constitution, as read with Section 203 of the Elections Act, 2017, every citizen of Pakistan who is not employed by the government has the right to organize a political party, join it, be connected with it, participate in political activities, and run for office. But these fundamental rights as per the second part of this article are subject to any legitimate limitations imposed by law, as stipulated by both the constitution and the law. One of the legislations parliament has passed in accordance with Article 17 of the constitution is the Elections Act, 2017.

A political party can be established and registered in Pakistan with a distinct identity for its national, provincial, and local structures by submitting its constitution, in accordance with Sections 200 and 201 of the Elections Act of 2017. A political party may amend its constitution in accordance with Section 201(3), but only after providing the ECP with a 15-day notice. As per law, a copy of the political party’s charter, the certification, and the information must be sent to the Election Commission of Pakistan in accordance with sections 201 and 209. As further required by Section 208, office-bearers of political parties at the federal, provincial, and local levels shall be chosen in accordance with the party’s constitution on a regular basis, with a maximum of five years separating elections.

The law states that if a political party or parties to whom a showcause notice has been issued under sub-section (4) of Section 215 fail to comply with the provision of Section 209 or Section 210, the ECP will, after giving it or them an opportunity to be heard, declare it or them ineligible to obtain an election symbol for election to parliament. The ECP will thus not allocate an election symbol to such political party or combination of political parties in subsequent elections under Section 215 of Elections Act. This is in accordance with the legal provisions and a mandatory serious consequence. This clause of Section 215 was not added later; it has always been part of the Elections Act 2017.

In the current case, the political party has been reminded multiple times on different occasions for compliance with the mandatory requirement since May 2021 as reflected in record and not disputed as well, which violation or non compliance has a serious repercussions on a political party for a general election under Section 215, but it had not complied. Further, there was an admission made before the ECP proceedings regarding such serious violations of the party constitution and, consequently, of the Elections Act, 2017 during intraparty election while conducting the proceeding under section 209 and section 215 of the Elections Act in December 2023 which has been reflected in the ECP order dated Dec 22, 2023.

A legal strategy seemed to be in question because, in addition to the intraparty election that was held on December 2, 2023, in pursuance of the ECP order dated November 23, 2023, a report was filed by the PTI and a request for certification under Section 209 of the Elections Act was made to the ECP but at the same time this November 23 order was also challenged in the Lahore High Court before the intraparty election dated Dec 2, 2023 was held in Peshawar; the same case is still pending before a larger bench of Lahore High Court. The Peshawar High Court had also heard and decided the same subject pursuant of that order which is not permitted or possible under the law to challenge the same matter before different or two forums or courts, as held by the superior courts.

It is always possible to legally contest orders made by officials, such as the Election Commission of Pakistan, on the grounds of discrimination, authority abuse, mala-fide, improper use of discretion, and legal violations. However, as the record shows, in the present case, not a single one of these grounds has been successfully submitted or established before the Supreme Court. Political narratives cannot, therefore, take precedence over legal submissions and arguments in a court of law.

The present case, the Supreme Court has ruled, differs greatly and legally from the Benazir Bhutto case in terms of both law and facts. First of all, the legislation in question is the Elections Act, which was enacted by a parliament that was democratically elected; in contrast, the unlawful modifications to ROPA were made by a single person. Second, the Elections Act mandates that general elections be conducted according to party affiliation, acknowledging the significance of political parties. Third, the Elections Act requires that all political parties have intraparty elections in an effort to fortify them. Fourth, all party members must have an equal chance to pursue political office if political parties are to continue being democratic. Fifth, there are consequences listed there for political parties who do not regularly organize intraparty elections under the Elections Act, 2017. One such consequence is that the party will no longer be able to use its election emblem under Section 215 of the Elections Act.

Relying solely on one part of Article 17 of the constitution is not a good argument nor is it legally sustainable when there is a second part of this article that particularly states that these fundamental rights are also subject to any legitimate limitations imposed by law, as stipulated by both the constitution. And the law made thereunder has specified and required certain things from Section 201 to Section 215 which is something the ECP reminded the PTI of many times since May 2021 under the relevant provisions of the Elections Act when the PTI was in federal government and also ruled two provinces.

Legal precautions and the law are always imposed on political parties; otherwise, there can be dire legal repercussions. This is especially true with regard to the application of Section 2015 of the Elections Act, which was passed in 2017 and has not yet been ruled legally invalid by the superior courts – a fact that the political parties in Pakistan were well aware of. They were also aware of its legal consequences: that the ECP shall not allocate an election symbol to such a political party or combination of political parties in subsequent elections.

The writer is a practising advocate of the Supreme Court of Pakistan with 25 years of legal standing. He can be reached at: hafizahsaan47@gmail.com