The Pakistan Tehreek-e-Insaf would not be contesting the delayed general elections on its iconic bat symbol as the Supreme Court on Saturday set aside the Peshawar High Court (PHC) order that reinstated “bat” as the party’s electoral symbol.

Consequently, the apex court upheld the December 23 order of the Election Commission of Pakistan that nullified the intra-party elections of the PTI.

Presiding judge Chief Justice of Pakistan Qazi Faez Isa announced the short order on the Election Commission of Pakistan’s petition challenging the PHC decision to restore the PTI’s election symbol after the completion of arguments from both sides.

CJP Isa remarked that the PTI failed to conduct its intra-party election in the order. The detailed judgement will be released later.

A three-member bench comprising CJP Isa, Justice Muhammad Ali Mazhar, and Justice Musrat Hilali heard the case.

The ECP would allot election symbols to political parties on Saturday (today). The SC proceedings were being broadcast live on the SC’s website and YouTube.

In a major blow to the PTI, the polls overseer on December 22 decided against letting PTI retain its electoral symbol for the general elections, saying that the party’s intra-party elections were null and void.

In reaction to the development, the PTI approached the PHC against the ECP order on December 26. A single-member bench of the PHC restored the bat symbol and directed that the case be fixed before a divisional bench.

But the ECP filed a review petition in the high court on December 30, saying that the court had overstepped its jurisdiction. Later, the PHC restored the ECP decision denying the use of the bat symbol to the PTI.

The PTI approached the Supreme Court against the restoration of the ECP ruling. On January 10, the PHC returned the bat symbol to PTI as it struck down the ECP decision.

Hearing

At the outset of the hearing, the CJP stated that the detailed order of the PHC restoring the PTI’s symbol had been issued. On this, the party lawyer described it as an “excellent decision”.

PTI lawyer Hamid informed the court that he would wrap up his arguments soon as it was the last day to submit party tickets to the ECP. The CJP also agreed with this, adding that the apex court has to write the order today (Saturday).

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

PTI counsel Ali Zafar argued that neither the Constitution nor the Elections Act 2017 granted the ECP the right to review a party’s intra-party elections. He cited Article (freedom of association) 17 of the Constitution, adding that fighting the elections with an electoral symbol was among a political party’s rights. He stated that depriving a party of such a right would violate the Constitution.

He accused the ECP of discriminating against the PTI. The watchdog was “not a court that could grant the right to a fair trial,” Zafar said.

Zafar contended that none of the party members challenged the intra-party polls, adding that such elections can only be challenged in civil courts.

He reiterated that intra-party polls were held as per the party’s constitution. Zafar informed the court that the ECP order admits that the intra-party elections were held and nowhere the electoral watchdog has not mentioned irregularity in its decision.

According to the PTI lawyer, the reasons given by the ECP in the order were “strange”.

After Zafar’s arguments, CJP Isa said: “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.

The CJP remarked that the ECP sent a notice to the PTI when it was in power. He refrained from discussing the constitutional status of the Election Act as no one has challenged it.

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‘Election symbol should be given if elections were conducted in regular manner’

Justice Mazhar asked whether the PTI had followed the election schedule it had issued.

“Were the [intra-party] elections transparent? Was it clear that who could contest the elections and who could not?” he asked.

While responding to PTI lawyers, he said that the former ruling party should also give a level playing field to its party members if the party demands it.

He added that the ECP took action after receiving complaints rather than on its own. Zafar replied that he would respond to all questions.

“Nowadays everyone uses the word establishment, the real term is army. We should talk openly and fully,” Justice Isa said and added that he respects constitutional institutions.

“We know what the election symbol is. If we talk about [General] Ayub’s rule, political parties in Pakistan have a history. The PPP’s sword symbol was taken from them, after which the PPP-Parliamentarian was created. The PML-N has seen a similar time. But it must be seen who was in the government at the time. There is a big difference between the situation of today and then, when SC judges took oath under the PCO. Today, the PTI’s opponents are not in government,” he added.

While Justice Mazahar said that the basic point was the authority of the ECP.

“If the elections were conducted in a regular manner, then the election symbol should be given in any case. Just tell me whether all party members got an equal opportunity in PTI’s intra-party elections or not. The ECP cannot be shown a piece of paper and be told that elections were held,” Justice Isa remarked.

Barrister Gohar’s election as PTI chairman

At one point in the case, the CJP said that the CJP’s own election has become questionable. “If the PTI founder had given a certificate, then it would have been another situation,” he said.

At this, the PTI lawyer said that the certificate needed to be issued by the incumbent party chairman, not the previous one.

When Justice Hilali asked who the PTI chairman was at the time of the intra-party polls, the lawyer replied Imran Khan.

Zafar informed the court that Babar had been expelled from the PTI. The CJP asked the lawyer to show on record that he was not a member. The counsel said that he would produce the document proving that.

“A certificate can only be issued once a party has held elections in accordance with its constitution,” Justice Hilali said.

The CJP said: “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.”

During the hearing, PTI Chairman Gohar Ali Khan had returned to the court after his Islamabad house was raided by masked men.

He told CJP Isa that four pickup trucks were at his residence where they roughed up his family and also confiscated a computer and documents. He said that his house was broken into by masked men, and his son and nephew were beaten while he was attending the SC hearing regarding his party’s electoral symbol of “bat”.

He asked the court to excuse him from the hearing and left. During his absence, the chief justice called Additional Attorney General Chaudhry Amir Rehman to the rostrum and said: “Nothing like this should happen, if it is happening.”

At this, the additional attorney general also left the court to take stock of the situation.

‘Inclusion of new members to party creates suspicion’

CJP Isa said that the inclusion of new people in the party creates suspicion that influential people had taken over the party. He said this when PTI lawyer Zafar mentioned PTI leader Niazullah Niazi.

“You are insulting me,” Niazi replied and accused Justice Isa of asking him PTI-related questions even during his son’s interview to obtain a licence to practice as a lawyer. “I have been appearing before you for the past three years. I know why this is happening to me.”

The CJP asked Zafar shall we issue a notice. He added that the court asks questions to understand it. “If you want to maintain this attitude, we won’t even hear the case,” the CJP remarked, forcing Zafar to intervene and apologise on Niazi’s behalf.

Zafar apologised on Niazi’s behalf.

Justice Hilali said that it seems the PTI was weak on the matter of documents as the party does not have the documents which the courts asked for. Zafar apologised to the court.

Proof of PTI’s intra-party polls

“The main thing is to have elections, not certificates,” the CJP said after Zafar’s argument. “Not having a certificate is not a problem, not having an election is a problem. The certificate can come even without an election.”

He wondered why the PTI was afraid of elections.

CJP Isa asked Zafar once again to provide any documents as proof that PTI’s intra-party elections had indeed taken place.

“If the PTI needed more time, it was said before that the decision [of Peshawar High Court] will have to be suspended,” Justice Isa said.

The CJP also asked Zafar to provide Khan’s nomination letter in favour of Barrister Gohar. To this, the PTI lawyer told the court that there was no such letter and the decision was simply announced in the media.

“If Imran Khan says tomorrow he did not give this nomination, then what will happen?” the judge wondered.

After hearing arguments from both sides, the CJP stated that he would consult his co-judges before coming up with observations.

Previous hearing

While hearing the case on Friday, CJP remarked 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 said during the hearing on the Election Commission of Pakistan’s petition against the PHC verdict restoring the PTI’s electoral symbol.

The Peshawar High Court earlier restored the symbol to PTI after the party appealed the ECP’s decision.

The ECP had ruled that the party had not organised elections as per its own Constitution and had taken away its electoral symbol.

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.

During the hearing, CJP Isa remarked that the ECP was a constitutional body and no one could interfere in its domain.