ECP is constitutional body and no one can interfere in its domain: CJP Isa

“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 CJP passed these remarks during a hearing of a ECP’s petition against the Peshawar High Court (PHC) verdict restoring the Pakistan Tehreek-e-Insaf's (PTI) electoral symbol — bat.

A three-member bench of the apex court led by CJP Isa and comprising Justice Muhammad Ali Mazhar and Justice Musarat Hilali is hearing the matter.

The case proceedings are being broadcast live on the SC website and YouTube channel.

Advocate Hamid Khan and Barrister Ali Zafar represented the PTI, while senior counsel Makhdoom Ali Khan appeared on behalf of the ECP.

A two-member bench of the PHC on Wednesday overturned the ECP decision revoking the election symbol ‘bat’ and rejecting PTI intra-party elections.

PTI leader Barrister Gohar Ali Khan and six other party leaders had filed a joint petition in the high court praying for declaring the ECP decision as illegal and without jurisdiction.

The ECP, however, on Thursday approached the Supreme Court and field a petition for leave to appeal under Article 185(3) of the Constitution against the PHC short order.

In the appeal, the electoral body questioned as to whether considering the importance of the matter the high court was justified in disposing of writ petition through a short order, without giving detailed reasons.

The hearing

At the outset of the hearing, PTI counsel Hamid Khan sought adjournment of 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.

The CJP said they were willing to sacrifice their weekly offs (Saturday and Sunday) to hear the cases related to the election.

“We want the elections to take place on time and as per law,” the CJP added.

ECP counsel Makhdom Ali Khan 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 Khan 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.

PHC issues notice to ECP

Meanwhile, the PHC issued a notice to ECP on PTI’s plea seeking contempt of court proceedings against the electoral body over its alleged failure to comply with its order on the intra-party polls.

A two-member bench comprising Justice Shakil Ahmad and Justice Waqar Ahmad heard the petition.

PTI counsels Qazi Muhammad Anwar and Shah Faisal Ilyas appeared before the court.

The PTI contended that the ECP failed to publish the certificate of the party’s intra-party polls on its website despite the PHC’s order.

The petition said that the PHC had on Wednesday termed illegal the ECP decision of December 22, 2023, wherein the latter had invalidated the intra-party elections of the PTI and deprived it of its electoral symbol “bat”.

The PTI requested the court to initiate the contempt of court proceedings against the ECP for non-compliance with the court directives.