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The Supreme Court is currently hearing the Election Commission of Pakistan’s (ECP) challenging the Peshawar High Court’s (PHC) decision to restore the PTI’s iconic ‘bat’ election symbol.
A three-judge bench, comprising Chief Justice of Pakistan (CJP) Qazi Faez Isa and justices Muhammad Ali Mazhar and Musarrat Hilali, is hearing the case.
The ECP’s petition, submitted by former attorney general Makhdoom Ali Khan, argued that the PHC should not have proceeded with the case without first issuing a notice to the attorney general for Pakistan (AGP).
This procedural step was necessary because the legal question at hand pertained to the federal government, involving the interpretation of Article 17 of the Constitution and its relationship with the provisions of the Elections Act of 2017, it said.
The petition also highlighted that the PHC’s order conflicted with previous Supreme Court rulings, which have consistently discouraged high courts from intervening in the electoral process, which, as per the Constitution, was exclusively within the ECP’s jurisdiction.
The petition emphasised that the high court’s judgement effectively nullified key sections of the Elections Act and Election Rules by restricting the ECP’s constitutional and statutory roles in regulating and supervising intra-party elections of political parties. This interpretation contradicted the principles established in previous superior court rulings, it said.
Furthermore, it undermined the fundamental purpose of Section 215(5) of the Act, in conjunction with Rules 157 and 158, which aim to foster democracy, pluralism, and transparency within political parties by ensuring timely intra-party elections, it added.
Additionally, the PHC ruling disregarded the essence of Section 208(2) of the Elections Act, which is intended to guarantee equal opportunities for all party members to contest elections for any political party office.
It said the high court order not only rendered relevant provisions practically redundant but also enabled a political party to undertake “sham” intra-party elections without any checks and balances. This, the ECP’s petition said, was not only contrary to Article 17 of the Constitution but was also in conflict with the principles of democracy.
The petition also pointed out that the PHC’s order overlooked the fact that the Elections Act was enacted under a democratic government and led to the repeal of various election laws, some of which were established during times of extra-constitutional rule.
‘Bat’ and forth
On December 22, the election commission had decided against letting PTI retain its electoral symbol for the general elections, saying that it had failed to hold intra-party polls as per its prevailing constitution and election laws.
Subsequently, the PTI had approached the PHC against the ECP order on Dec 26 and a single-member bench restored the electoral symbol of the party till January 9 and directed that the case be fixed before a divisional bench.
On Dec 30, the electoral watchdog had filed a review application in the PHC, arguing that the court had overstepped its jurisdiction. Days later, in a major blow for the PTI, the high court had withdrawn the stay on the ECP order, stripping the party of its symbol again.
Consequently, the PTI moved the Supreme Court against the restoration of the ECP ruling. On Wednesday, the party had withdrawn the appeal as the matter was already being heard by the PHC.
The same day, the PHC had declared “illegal” the ECP’s decision to revoke PTI’s iconic ‘bat’ electoral symbol and reject its intra-party polls.
In the short order, the PHC had termed the ECP order as “illegal, without any lawful authority and of no legal effect”.
“The ECP is directed to forthwith publish the certificate [of intra-party polls] filed by the petitioner on its website in terms of section 209 of the Elections Act, 2017,” the bench consisting of Justice Ijaz Anwar and Justice Syed Arshad Ali said in a brief order.
According to the court, the PTI was entitled to the election symbol “strictly in terms of sections 215 and 217, read with any other enabling provision of the Elections Act 2017 and Election Rules 2017”.
A day earlier, the ECP had challenged the PHC’s decision to restore the PTI’s election symbol. Simultaneously, the PTI initiated legal action in the PHC, filing a contempt petition against Chief Election Commissioner Sikandar Sultan Raja and other ECP members for not implementing the high court’s order in the case.
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