PESHAWAR: PTI’s Barrister Ali Zafar on Tuesday contended that the Election Commission of Pakistan (ECP) was just a “record keeper” and did not have the power to strip a political party of its electoral symbol as the Peshawar High Court (PHC) took up a petition challenging the watchdog’s decision to revoke the PTI’s ‘bat’ symbol and nullify its internal polls.
On December 22, the ECP had decided against letting PTI retain its electoral symbol for the February 8 election, saying that it had failed to hold intra-party polls — which saw Barrister Gohar Ali Khan becoming the PTI chairman — according to its prevailing constitution and election laws.
Subsequently, the PTI had approached the PHC. On Dec 26, the PHC had suspended till Jan 9 the ECP’s declaration of the PTI’s intra-party polls as unconstitutional as well as the subsequent revocation of the ‘bat’ symbol. It had also noted that general elections were scheduled for February 8 and the last date for allotment of election symbols was January 13.
On Dec 30, the electoral watchdog had filed a review petition in the PHC, arguing that the court had overstepped its jurisdiction. Days later, in a major blow for the PTI, the high court restored the ECP’s December 22 order that had stripped the party of its symbol.
Subsequently, the PTI moved the Supreme Court against the restoration of the ECP ruling, which has been fixed for hearing on January 11 (Thursday).
Justice Ejaz Anwar and Justice Syed Arshad Ali took up the plea today. During the hearing, PTI lawyers drew the ire of the judges for arriving to the hearing late.
The four-hour-long proceedings were later adjourned till 9am tomorrow (Wednesday) after Barrister Ali Zafar and the ECP counsel wrapped up their arguments.
The hearing
When the hearing began after the requested time, Advocate Qazi Anwar informed the PHC that Gohar and Zafar would reach the court in “five to ten minutes”.
At this, Justice Anwar expressed displeasure, asking, “Are you not interested? We have been waiting since the morning for them.
“When our cases were fixed at the Supreme Court, we used to reach there early in the morning,” he added. Qazi again sought more time from the judges, assuring the court that the PTI leaders were to arrive soon.
“What manner is this that the [court] bench is being kept waiting?” Justice Anwar asked. The court noted that the ECP had submitted its response and that the hearing would begin once the PTI lawyers had arrived.
Here, Justice Anwar directed that the lawyers objecting to the PTI’s intra-party polls and electoral symbol should also be summoned. Noting that the objectors included Akbar S. Babar, the judge asked about his absence.
At one point during the hearing, Jahangir Raza, also challenging the party’s intra-party polls, said his counsel was not coming to the court due to a strike. To this, Justice Anwar remarked, “This is a court. We have nothing to do with a strike.”
Here, the ECP informed the court that it would the electoral symbols would be allotted to the candidates on January 13 (Saturday).
“If there is no symbol allotted to the PTI, their candidates would be considered independent,” ECP counsel Sikandar Shah Mohmand said.
He added that the interim relief of a stay order on the electoral watchdog’s December 22 ruling had ended today.
Here, Justice Ali asked, “Can this matter be solved if we make a decision today? A case in the Supreme Court would not be needed?” The ECP lawyer replied that the matter would not reach the apex court then.
When Qazi, the PTI lawyer, apologised to the PHC for the delay in Ali’s arrival, Justice Anwar directed him to tell the PTI leader that they would not wait further and gave a break in the hearing till 1:15pm.
When the hearing resumed, Barrister Zafar and Gohar appeared before the court and apologised for their late arrival.
In his arguments, Zafar recalled that those objecting to the PTI’s intra-party polls held in June 2022 had demanded that the party hold the elections again.
He argued that the PTI had submitted a record of its intra-party polls to the ECP, adding, “The election commission began raising questions on it later on.”
The PTI lawyer contended that none of those who had challenged the party polls were PTI members. “Our 800,000 voters do not include the names of the objectors,” he said.
Here, the ECP counsel said the petitioners had argued that the PTI’s intra-party polls had not been held according to the party’s constitution.
“The PTI will be deprived of its share from 227 specific seats,” Barrister Zafar said, adding that if the ‘bat’ symbol was taken away from the party, it would be rendered dormant.
At this, Justice Ali asked the PTI counsel if his objection was on the matter of intra-party polls not falling within the ECP’s jurisdiction. “If a decision is not made today, hundreds of thousands of people will be deprived of the rights of a [political] party,” Zafar argued.
The ECP lawyer then claimed that “no one was allowed to take part” in the party elections and that “everything was decided from before”.
“Can intra-party polls be held if electoral symbols still have to be allotted on January 13?” Justice Ali asked Mohmand, to which he replied that the PTI had not sought nomination papers from any candidate.
Here, the PHC asked the parties if the hearing should be adjourned till Thursday, at which Zafar requested the court to restore the interim relief given earlier.
However, Justice Anwar refused to grant the same, stating that the “interim relief was the final request”. Zafar then said the party would not be able to provide the ECP with the list of its candidates as the symbols have to be allotted on January 13. The court then directed him to continue his arguments.
Subsequently, the PTI counsel read out loud the ECP’s order on PTI’s intra-party polls, highlighting that the party had held its internal elections on the electoral watchdog’s orders which resulted in Barrister Gohar being elected as the chairman.
“Barrister Gohar signed on record and submitted it to the ECP,” Zafar said, adding that the commission did not have the power to declare the intra-party polls null and void.
“Even if intra-party elections are not held, the ECP cannot snatch a party’s electoral symbol,” he argued. “The ECP is only a record keeper.”
He further pointed out that the only objection raised by the commission to the party’s intra-party polls was that the appointment of the chairman was not done properly. “The ECP’s verdict is based on malafide and should be nullified,” Zafar pleaded.
After the PTI counsel wrapped up his arguments, the court adjourned the hearing for 15 minutes.
When the proceedings resumed, ECP counsel Mohmand started presenting his arguments. He said the Lahore High Court had dismissed the case as it was already fixed before the Supreme Court. “Two courts cannot be approached for relief at the same time,” he contended.
On allegations that the ECP verdict was issued in haste, the lawyer highlighted that the PTI was given several chances to implement the commission’s orders. The ECP had categorically said that the PTI would be stripped of its electoral symbols if intra-party polls were not held, he said.
Mohmand said the electoral watchdog had even granted the PTI a year to hold polls due to the Covid-19 pandemic and had issued several notices in this regard as well.
He claimed that the PTI took several “u-turns” in its documents as well, alleging that the party made amendments to its constitution but withdrew them when the election commission summoned it. “If the intra-party polls were held on the amendments withdrawn, then these polls would be nullified,” the lawyer added.
The ECP, he continued, was of the view that the PTI did not transparently hold its internal elections. Mohmand added that the party’s claim that the election commission was not empowered to revoke the electoral symbol was false and the ECP had the constitutional power to do the same.
“The commission is responsible for conducting free and fair elections,” he said.
Moreover, the ECP counsel clarified that the commission had only revoked the PTI’s ‘bat’ symbol. On the intra-party polls, he said that they should not just be in accordance with the party’s constitution but also the Elections Act. A party is bound to satisfy the ECP on its internal elections, Mohmand added.
Here, Justice Ali asked if the election commission could take action on the issue of intra-party elections. “Yes, absolutely,” the ECP counsel replied.
Meanwhile, Justice Anwar inquired if the electoral body had issued notices to the PTI, to which Mohamand said three show-cause notices had been served to the party. But the judge interjected that these notices were issued before the intra-party polls.
“Should a notice not have been issued after the internal elections?” Justice Anwar asked. The ECP counsel replied in the negative, saying that the case was already being heard and there was no need for a new show-cause notice.
“The ECP is not a court,” he contended. “The election commission is an independent regulatory body and has constitutional authority.”
The hearing was subsequently adjourned for tomorrow after the ECP counsel concluded his arguments.
