F.P. Report
ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa on Friday observed that democracy was a fundamental right, which should be present in both a country and a political party.
“Every citizen has a fundamental right to vote for a political party of its choice and every political party member has the same right too,” he remarked, adding that if this right was snatched then there would be “dictatorship on the national and local level”. The observations came as a three-member Supreme Court bench — comprising the CJP, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali — took up the ECP’s petition challenging the Peshawar High Court’s (PHC) decision to restore the PTI’s iconic ‘bat’ election symbol. The proceedings were broadcast live on the apex court’s website.
But during hearing, CJP Isa raised a pertinent question did the high court declare PTI’s intra-party polls in line with the law? “The issue of bat electoral symbol’s allotment comes later. First, we will have to review the party’s intra-party elections.” “Peshawar High Court did not issue a declaration that PTI’s intra-party polls were in line with the law. It just ordered that PTI should be given its election symbol back. The Peshawar High Court’s decision is flawed and prima facie.
At the outset of the hearing, PTI lawyer Hamid Khan and ECP lawyer Makhdoom Ali Khan appeared before the court, while PTI lawyer Ali Zafar attended the hearing via video link from the top court’s Lahore registry. Akbar S. Babar, the estranged PTI leader who initially challenged the party’s intra-party elections in ECP, also appeared before the court.
Meanwhile, Gohar Ali Khan, who was elected as PTI chairman in the controversial intra-party polls, party’s chief election commissioner Niazullah Niazi, and lawyer Shoaib Shaheen were also present during the hearing. During the hearing, CJP Isa observed that the ECP is a constitutional body and no one can interfere in its domain.
“Supreme Court will not interfere in the domain of the Election Commission of Pakistan. However, if ECP commits any unconstitutional act then the court can look into it,” the top judge added. The PTI counsel requested the court to adjourn the hearing till Monday to prepare for the case.
At this, CJP Isa said the PHC decision has to be suspended for three days if the case is adjourned till Monday. Meanwhile, ECP counsel Makhdoom Ali told the bench that electoral symbols will be allotted to candidates contesting the February 8 polls tomorrow. Advocate Khan challenged the ECP’s locus standi and maintainability of the plea saying that the electoral body cannot challenge the PHC verdict in the SC as it is not an affected party.
The ECP counsel said cannot be sustained in the eyes of the law and added that the electoral body has the authority to issue electoral symbols to political parties. CJP Isa observed that the ECP is a constitutional body which has two primary responsibilities — to deal with the affairs of the political parties and to hold transparent elections.
“If the Election Commission’s locus standi is questionable, then questions will also be raised on PTI’s [right to appeal] as to why PTI moved the PHC,” the CJP remarked. CJP Isa said the ECP decision will become meaningless if it does not appeal decisions. At this, PTI counsel Khan questioned whether a district judge can overturn his own decision.
CJP Isa responded by saying that the district judge is subordinate to the judiciary while the ECP is an independent constitutional body. “Mr Hamid Khan, don’t compare a constitutional institution with a legal institution. The two judgments you referred to are regarding legal entities,” CJP Isa told Advocate Khan. The PTI counsel maintained that every constitutional institution operates under the law and the Election Commission operates in accordance with the law of the Election Act
“We have noted your objection,” the CJP added. After the court met again following the break, ECP counsel Makhdoom Ali resumed his arguments. The ECP counsel contended that PTI intra-party elections were kept secret and documents submitted by the party regarding the polls were not consistent with facts.
The CJP inquired ECP counsel about the former PTI secretary general Asad Umar who quit the party following the May 9 events. “Is there any resignation of Asad Umar? Has he been expelled from PTI?” the CJP asked. However, the ECP counsel expressed ignorance saying the electoral body does not have any information regarding Umar’s resignation and added that incumbent PTI’s secretary general Umar Ayub signed the notification related to the PTI intra-party elections.
However, he said it’s not known how Ayub became the party’s secretary general. After hearing the ECP’s counsel arguments, the CJP observed: “It means PTI has violated its constitution.” He further asked: “Where did the intra-party elections take place? In a hotel or a cricket ground?”
The PTI counsel told the bench that the party’s intra-party polls were held in a small village near Peshawar. “Why were intra-party elections held in this small village?” Justice Hilali inquired. The CJP remarked during the hearing that the members of every political party have the right to cast their vote. “If this right is taken away, it would be considered a dictatorship on a national level and would be a violation of rights,” he added.
The top judge asked if the ECP is investigating all political parties like it is doing in PTI’s case. At this, ECP’s lawyer Makhdoom Ali maintained that all political parties have been inquired about their intra-party polls as per his knowledge.
The top judge stated that the PHC did not give any declaration that PTI’s intra-party polls were in line with the laws. It just ruled that the ‘bat’ symbol should be given to PTI, he added “What is the validity of the December 2 intra-party polls,” CJP Isa asked. The lawyer of Babar complained that PHC didn’t hear him nor make him a party in the case.
The counsel said that Babar is a founding member of PTI and has been a member instead of joining another political party, but he wasn’t allowed to participate in the intra-party polls. At this, the court asked for evidence of Babar being a founding member of PTI and sought a copy of the PHC’s written order. Meanwhile, the ECP lawyer said that the PHC didn’t issue notice to the attorney general, which is a mandatory practice in case of a constitutional matter. The high court didn’t hear several parties, he added.
At this point, ECP lawyer wrapped up his arguments. Then, the CJP remarked: “Whether anyone wants or not, but we want elections conducted in the country.” “PTI will have to face consequences if intra-party polls are not correct,” CJP Isa said before adjourning the hearing till 10am tomorrow (Saturday). PTI lawyer Hamid will begin his arguments upon the resumption of hearing on Saturday morning.
