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Chief Justice of Pakistan (CJP) Qazi Faez Isa on Saturday told PTI lawyer Hamid Khan to “substantiate” the allegation of mala fide that the counsel had made against the Election Commission of Pakistan (ECP).
The remarks came as a three-member bench — comprising the CJP, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali — resumed hearing the ECP’s petition challenging the Peshawar High Court’s (PHC) decision to restore the PTI’s ‘bat’ election symbol.
The ECP will allot election symbols to political parties today. The SC proceedings are being broadcast live on the SC’s website and YouTube.
On December 22, the ECP 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 approached the PHC against the ECP order on Dec 26 and a single-member bench restored the party’s electoral symbol until Jan 9, directing that the case be fixed before a divisional bench.
On Dec 30, the electoral watchdog 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 withdrew 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 On Wednesday, the party had withdrawn the appeal as the matter was already being heard by the PHC.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’ 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”.
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”.
On Thursday, 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.
During the previous hearing yesterday, CJP Isa had observed that democracy was a fundamental right, which should be present in both a country and a political party.
Justice Isa had also highlighted that the case was “time sensitive” with the Feb 8 general elections approaching, adding that the matter required “immediate attention”.
ECP counsel Makhdoom Ali Khan had contended that the PTI had held its intra-party polls “secretly” and the elections were not in accordance with the party’s documents. Upon being repeatedly questioned, he also assured the bench that no discriminatory behaviour had been adopted with the party.
The apex court is expected to announce its verdict on the ECP’s appeal today as returning officers (ROs) are also set to allocate poll symbols to electoral candidates.
Hamid Khan has appeared as the PTI counsel while Makhdoom Ali Khan is present as the ECP lawyer. PTI lawyer Ali Zafar and the party’s chief election commissioner (CEC) Niazullah Niazi are also present in the courtroom.
The hearing
At the outer of the hearing, CJP Isa said that the detailed order of the PHC restoring the PTI’s symbol has been issued, at which the party counsel termed it an “excellent decision”.
Hamid then came to the rostrum, noting that today was the last day to submit the party tickets to the ECP so he would try to wrap up his arguments soon. “We also have less time as we also have to write the order,” the chief justice said indicating that the court would announce its verdict today.
At one point during the hearing, Justice Isa told the PTI counsel to either “give the whole context” for its allegations of mala fide against the ECP or “keep it (the arguments) legal”.
“Did we appoint them? You all appoint these people. We don’t appoint them,” he remarked, adding that the apex court could “force” the commission to perform its duties but “not take on their responsibilities”.
The CJP told the PTI counsel: “Substantiate if you are taking the angle of mala fide.”
“If they’re mala fide then we look at them with very suspect eyes or you take away this allegation. I am not saying ‘take it away’. It’s your call,” he added.
At this, Hamid said he would keep his arguments non-political. When asked if he was withdrawing his allegation of “mala fide in fact”, the lawyer replied he would not “go into that arena”.
ECP petition
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.
More to follow
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