Violation of PTI’s party constitution ‘proved’ to the extent of chairman’s election, observes CJP – Pakistan

At the outset 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.

Here, Justice Mazhar noted that there were two questions: whether the court had jurisdiction or not and whether the ECP has the authority to investigate intra-party polls.

Zafar then argued that neither the Constitution nor the Elections Act 2017 granted the electoral watchdog the right to review a party’s intra-party elections.

Citing Article 17 of the Constitution, he asserted that contesting the elections with an electoral symbol was among a political party’s rights and that depriving a party of the same would be in violation of the Constitution.

“The election commission has discriminated against the PTI. The ECP has apparently been mala fide by taking away the ‘bat’ symbol,” he alleged, contending that the watchdog was “not a court that could grant the right to a fair trial”.

Zafar claimed that none of the PTI members had challenged the intra-party polls, asserting that they were held according to the PTI’s constitution.

He highlighted that the ECP had given 20 days to hold the intra-party elections, which the PTI complied with due to the fear of the party being “excluded from the elections”.

The PTI lawyer said his basic argument was that those challenging the intra-party polls were not party members. He added that the PTI had responded in writing to the ECP’s 32 questions, following which it set aside the intra-party elections.

Zafar contended that the election commission had not mentioned “any irregularity” in its Dec 22 order but said that the “reasons given were strange”.

He said that the ECP had said it would not accept the intra-party polls as the appointment of the party CEC was not done correctly. However, he added, that a day ago the ECP counsel had raised technical objections and talked about “democracy within the party”.

Here, CJP Isa, reiterating his remarks from yesterday, noted, “There should be democracy within political parties as well as within the country. The basic question is of democracy, not of complete implementation of the party constitution.”

“It should at least be seen that [intra-party] elections were conducted,” he said, adding that Akbar S. Babar was also a party member “even if disliked” by the party.

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”.

At one point during the hearing, the CJP observed, “The PTI’s constitution says that the chairman shall be elected every two years while others every three years. Violation of the party constitution is proved to this extent.”

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.

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