ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) requested the Supreme Court to review its judgment as it is a violation of the fundamental rights under articles 17, 10A, and 25 of the Constitution and has disfranchised millions of voters.
A three-member bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Muhammad Ali Mazhar and Justice Musarrat Hilali on January 13 upheld the verdict of the Election Commission of Pakistan (ECP) that there were many irregularities in PTI’s intra-party elections, thus, deprived the PTI of its election symbol of “cricket bat”.
The PTI on Tuesday through Hamid Khan and Barrister Ali Zafar filed the review petition against the apex court’s judgment dated January 25, 2024.
It maintained that the judgement be reviewed because it blatantly violates peoples’ constitutional rights, saying under the Elections Act, 2017 there is no power and jurisdiction of the ECP to decide an intra-party election dispute or take away the symbol in case of an alleged irregularity in the intra-party elections. Indeed, the judgement under review fails to identify any provision in the Elections Act making it legally questionable.
In the proceedings before the Supreme Court of Pakistan, an earlier judgement of the ECP was presented in which the ECP acknowledged and confirmed that it has no jurisdiction under the law to decide any intra-party election dispute. ECP’s own judgement too has been ignored and hence the judgement under review is liable to be reviewed.
The petition said that it is well-established law that an intra-party election dispute is a civil dispute between members which can be decided only by a proper trial in a court of law, and since ECP is not a court of law, it could not (and in fact did not) conduct a trial or decide this dispute. This is also the mandate of Article 10A which provides that any civil dispute is to be decided by a court through a fair trial.
The counsels submitted that Article 25 of the Constitution, prohibits discrimination, yet ECP’s decision in PTI’s case contrasts with its leniency towards another political party i.e. ANP. Despite ANP not holding intra-party elections, the ECP granted it the symbol and imposed only a fine. Moreover, out of 175 political parties, and throughout Pakistan’s history, ECP has never ever examined intra-party elections on the grounds of any irregularity nor refused a symbol on that basis.
They contended that since the case involved constitutional questions, under the Supreme Court (Practice and Procedure) Act, it could only have been heard by a five-member bench. The judgement under review hence suffers from lack of jurisdiction.
The PTI lawyers stated that the conclusion contained in the judgement under review is not supported by the text of the relevant provisions of the statute i.e. sections 208, 209, and 215 of the Elections Act. None of the said sections confers a power on the ECP to independently review whether intra-party elections are held in accordance with a political party’s constitution, or to adjudicate disputes between allegedly disputing members of a political party.
Section 208 of the Elections Act requires that intra-party elections are to be held by a political party. Section 208(5) also prescribes the consequence in case a political party fails to do so i.e. a show cause notice which may culminate in the penalty of a fine of ranging from PKR 100,000 to PKR 200,000.
Section 209 requires that subsequent to the holding of an intra-party election, the political party must furnish a certificate to the ECP. Section 209(3) imposes an obligation on the ECP to (“The Commission shall”) publish the certificate furnished by the political party on its website within seven days. It does not prescribe that the ECP must satisfy itself that the certificate has been validly issued under the party’s constitution. Section 215(5) does not make any reference to section 208 of the Elections Act which requires the holding of intra-party elections. In fact, it only refers to section 209 i.e. a failure to furnish a certificate.
The interpretation preferred by the Court in the Judgement under Review is clearly not supported by the plain text of sections 208, 209, and 215 of the Elections Act. Thus, the judgement under review is liable to be reviewed and recalled.
Copyright Business Recorder, 2024
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