The Supreme Court of Pakistan is hearing the challenge thrown to it by the Election Commission of Pakistan (ECP) against the Peshawar High Court’s (PHC) decision to restore the PTI’s election symbol, reported 24NewsHD TV channel.
A three-judge bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Muhammad Ali Mazhar and Justice Musarrat Hilali is hearing the case. After today's hearing, the court adjourned till tomorrow (Saturday) at 10 am.
The ECP’s petition, submitted by former attorney general Makhdoom Ali Khan, prayed that the PHC should not have proceeded with the case without first issuing a notice to the Attorney General for Pakistan (AGP).
It further says 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, maintaining 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.
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.
Today’s hearing
At the outset of the hearing, the Chief Justice of Pakistan inquired whether the detailed decision of the Peshawar High Court has come? PTI lawyer Hamid Khan said that the detailed decision has not come yet.
Election Commission lawyer Makhdoom Ali Khan read out the Peshawar High Court's decision to restore the bat symbol to the PTI in the Supreme Court.
Lawyer Hamid Khan requested the court to give him time till Monday to prepare, on which the Chief Justice said that if the case has to be adjourned for 3 days, then the decision of the Peshawar High Court has to be suspended. We are ready to work tomorrow and the day after tomorrow. We can listen to election cases by sacrificing our holidays on Saturday and Sunday.
Justice Qazi Faez Isa said that he only wants the elections to be held on time and now the time for elections is short.
The Chief Justice said that he too has not read the file of the case. He asked Hamid Khan when would he be ready for the case.
Election Commission lawyer Makhdoom Ali Khan said that tomorrow candidates would be allotted election symbols. He argued that the PT intra-party election was not conducted according to the law.
During the hearing, Tehreek-e-Insaf raised an objection to the admissibility of the Election Commission's appeal.
CJP Isa remarked that the Election Commission is also a constitutional institution. If you object to the admissibility of the appeal of the Election Commission, the same question will come to you. You will also be asked how you went to the Peshawar High Court.
The PTI lawyer said that there was a decision against us, so we approached the High Court. The Chief Justice remarked that if the Election Commission takes a decision and instead of defending it, casts it down, why should the Election Commission do this?
The election commission lawyer said that the last party elections of Tehreek-e-Insaf were held in 2017. According to the party constitution, Tehreek-e-Insaf was bound to hold party elections in 2022.
Justice Muhammad Ali Mazhar asked where the procedure for appointing the Election Commissioner is mentioned in the constitution of PTI? On which, the ECP lawyer said that first Jamal Ansari and now Niazullah Niazi became the Chief Election Commissioner of the PTI.
The Chief Justice asked who were the remaining members of the Election Commission according to the party constitution? Lawyer Makhdoom Ali Khan said that apart from the Chief Election Commissioner, no other member was appointed.
Chief Justice Isa inquired of Hamid Khan if this is true. On which, PTI lawyer said that the election commission's lawyer is not correct.
Chief Justice asked where are the appointment documents of the PTI Election Commission members?
Hamid Khan said that he asked for time to prepare the case.
The PTI lawyer said that he would give arguments on the non-maintainability of the ECP appeal. It would be appropriate to first listen to the point of claiming the right and admissibility, he pleaded.
The Chief Justice of Pakistan said, “The Election Commission is a constitutional body, the Collector comes here to defend his orders, there is no objection to it, you have the right to raise objections. The party did not conduct the election under its own constitution, Hamid Khan sir, if you want to submit the documents, you must do so. If the court summons Election Commission record, we will also look into it.”
Hamid Khan said that the court had stopped the institutions from appealing against their decisions in the cases of the Competition Commission and the Federal Ombudsman. On which the Chief Justice inquired if these decisions are applied to constitutional institutions. “Institutions established under the law and the constitution cannot be the same, the election commission constituted under the constitution will use the powers only according to the constitution, show any decision where the constitutional institutions are barred from appeals,” the CJP asked.
PTI lawyer Hamid Khan said that the Election Commission is dependent on the Election Act and not on the Constitution, to which, the Chief Justice said ‘if the court accepts what you are saying, it means the ECP would stop being a constitutional institution. Once the former Chief Justice Jawad S. Khawaja started advancing the date of local body elections, I told Justice Jawad S. Khawaja that I will write a dissenting note. Jawad S Khawaja agreed with me’.
The Chief Justice of Pakistan said, “The Election Commission is a constitutional institution and nobody can interfere in its work. If the Election Commission does any illegal work, then the matter can be looked into. Where is the appointment document?” On which, Hamid Khan said that if the court had issued an official notice, they would have brought the documents today.
Chief Justice Qazi Faez Isa said that PTI had gone to the High Court itself, they should not have been surprised when the appeal was filed.
Election Commission lawyer Makhdoom Ali Khan said that those who challenged the PTI intra-party election have been made a party. Akbar S. Babar is a founding member and part of PTI.
Hamid Khan said that Akbar S. Babar is not a member of PTI, on which Justice Muhammad Ali Mazhar asked the lawyer of Akbar S. Babar how is Akbar S. Babar a member of Tehreek-e-Insaaf? Akbar S. Babar's lawyer said PTI had not given any written response to our complaint.
The Chief Justice said that Akbar S. Babar has written himself as a founding member of PTI while Hamid Khan said that Akbar S. Babar is no longer a member of PTI, the statement of the party takes precedence over the statement of an individual. While talking to Hamid Khan, he said, "Don't be emotional, show the document to the court that Akbar S. Babar is not a member of the PTI".
SC seek original record from ECP
The Supreme Court asked the Election Commission for the original records and put three questions before the lawyers of the Election Commission and PTI.
The Chief Justice of Pakistan remarked that in the PTI Constitution, the Federal Election Commissioner was entrusted with the responsibility of holding intra-party elections. Why was the word Chief Election Commissioner PTI written in the recent intra-party elections? In the intra-party election, the other six provincial election commission members signed and if signed, where are their documents, if not signed, what are the reasons?
The court adjourned the hearing of the case till half past one. Election Commission staff, PTI lawyer Hamid Khan, founding leader PTI Akbar S. Babar, Barrister Gohar, Advocate Shoaib Shaheen, Niazullah Niazi and Senator Waleed Iqbal are also present in the Supreme Court.
When the hearing began after the break, the Chief Justice remarked that PTI has a very good constitution and it mentions everything, where is the permanent secretariat of PTI. PTI lawyer Niazullah Niazi said that there is a permanent secretariat of PTI in G8-4, Islamabad. The Chief Justice said that PTI's constitution mentions holding the election of the chairman in 2 years, has Asad Umar left the party.
The election commission lawyer said that the election commission was not informed in writing how Omar Ayub was appointed as secretary, there is nothing on the records of the election commission that Asad Umar was removed. The Chief Justice asked how many members were there when the intra-party elections were held? The Election Commission lawyer said that we do not know, nor were we told, where the elections were held in Khyber Pakhtunkhwa.
Niazullah Niazi advocate said that intra-party elections were held at the cricket stadium in Ranogarhi, upon which Justice Musarrat Hilali remarked that why Ranogarhi was chosen, it is a small village.
The Chief Justice questioned whether the members were aware that the intra-party elections would be held in Ranogarhi, how PTI members would know where to go to vote.
ECP lawyer said that the Election Commission was not told where the intra-party elections were to be held while PTI lawyer Barrister Gohar said that we had informed the members through WhatsApp.
The Chief Justice remarked that there is any document on record that shows where the members should go to vote. Justice Muhammad Ali Mazhar said in his remarks that there are members of PTI in every province, the members have to come from every province including Punjab and Sindh to vote.
Lawyer Niazullah Niazi said that we have the video, should we play it, on which the Chief Justice remarked that this is a constitutional court, go out and play the video. Barrister Gohar said that we have 837,095 members in the whole country, on which Justice Muhammad Ali Mazhar said that whether 8 lakh members knew where the intra-party elections would be held.
When Niazullah Niazi tried to give an answer, the Chief Justice directed him to speak through a lawyer. Talking to Niazullah Niazi, the Chief Justice said that you are not a lawyer, but you are only a party, you are an election commissioner and tell me who is your lawyer?
Niazullah Niazi replied that his lawyer is Hamid Khan. The Chief Justice said that it is fine then we will listen to him.
Justice Muhammad Ali Mazhar remarked that what is the procedure for obtaining and submitting nomination papers for the intra-party election. The Chief Justice asked who were the returning officers in the intra-party election.
ECP lawyer said that intra-party elections were held on June 19, 2017, on which lawyer Niazullah Niazi said that intra-party elections were held on June 8, 2022. ECP lawyer said that the Election Commission had declared the intra-party election of 2022 null and void.
Justice Muhammad Ali Mazhar asked whether the case of intra-party election of June 8, 2022 has been challenged in the Lahore High Court yet? PTI lawyer Hamid Khan replied that we followed the decision of the Election Commission, therefore the case in the Lahore High Court became ineffective, while Barrister Gohar replied that the Election Commission removed the PTI founder from the chairmanship, we requested to consolidate intra-party election and chairmanship cases in Lahore High Court.
The Chief Justice inquired that when the case is pending before the 5-member bench of the Lahore High Court, why did they go to another High Court? Barrister Gohar said that the intra-party election was held in KP, so he went to Peshawar High Court. The Chief Justice remarked that his lawyer Ali Zafar said that the application should be kept alive in the Lahore High Court, sometimes they go to one court and then to another court.
The PTI lawyer argued that we were given security only in KP. The Chief Justice remarked we want to give you your election symbol if you are justified in your case, ‘if you will buy from wherever you want, then the system will be corrupted, you keep going from one court to another, this will not happen’.
The Chief Justice remarked that the decision regarding the general elections was made in 12 days. Everyone including the President, Election Commissioner and Provincial Advocate were happy. You asked Lahore to form a five-member bench and they did so. The PTI hit itself with an ax on its feet, why did you take the same case to two High Courts?
Reporter Amanat Gishkori