• Peshawar High Court recalls order restoring ‘bat’ symbol because it was ‘issued without hearing ECP’
• Commission says 19 cases over various parties’ symbols still pending, claims earlier PHC order had ‘hindered’ election process

PESHAWAR: The Peshawar High Court (PHC) on Wednesday recalled its earlier decision and restored a ruling of the Election Commission of Pakistan (ECP) which had revoked the PTI’s electoral symbol ‘bat’ over discrepancies in the intra-party elections held on the orders of the election watchdog.

The PTI had approached the PHC against the decision of the ECP and on Dec 26, a single-member bench of the high court suspended the decision and restored the electoral symbol of the former ruling party.

Subsequently, the Election Commission of Pakistan filed an intra-court appeal in the PHC against its decision to return the electoral symbol to the PTI.

On Wednesday, Justice Muha­m­mad Ijaz Khan accepted the review plea of the ECP and decided that the high court’s interim order on Dec 26 was an “ex parte order” as the same was passed without providing any opportunity for a hearing to the commission.

“Under the election laws the whole exercise of holding and conducting an election i.e. right from the issuance of notification of holding an election till the publication of names of the successful; candidates in the official gazette, is a time-bound exercise, therefore, the said order has prima facie created hindrance in the smooth process of the election which is to be conducted by the ECP…on the instant 8th of February,” the order issued on Wednesday read.

“In view of the above, the interim order of this court passed in favour of the writ petitioner/ PTI is hereby recalled/vacated and consequently the Election Commission of Pakistan is directed to proceed with the election process as per its constitutional mandate as well as various orders of the Supreme Court of Pakistan passed in respect of the ensuing election and it shall ensure to conduct and hold free, fair and transparent election,” the judge pronounced.

The court further pronounced that the grievance of the petitioner as agitated in the main writ petition was to be considered and finally adjudicated upon by this court on the date fixed (Jan 9). It ruled that the said interim order, prima facie, amounted to the grant of final relief for all the legal, factual and practical purposes.

“While passing the said order, an aspect of its effectiveness beyond the territorial jurisdiction of this court was not taken into consideration,” the judge ruled.

It is pertinent to mention that the PTI chairman Barrister Gohar Ali Khan and six other leaders challenged the Dec 22 verdict of the ECP on multiple grounds, including lack of jurisdiction.

On Dec 26, Justice Kamran Hayat Miankhel ordered a temporary suspension of the ECP’s decision, instructing the commission to publish PTI’s intra-party poll certificate on its website and restore the party’s election symbol ‘bat’. That order had to remain in effect till Jan 9.

Arguments on review plea

Advocates Qazi Muhammad Anwar and Shah Faisal Uthmankhel appeared for the petitioners and contended that the review plea of the ECP was not maintainable. Qazi Anwar contended that the ECP was not competent to file the instant plea for the withdrawal of the interim relief. He argued that no inconvenience was caused to the ECP due to the said interim order and in fact, the petitioner would face irreparable loss if the said order was recalled or vacated.

He contended that the returning officers were scheduled to allot symbols to candidates on Jan 13 and in case the earlier order was vacated the PTI would suffer. He added that the PTI was the “most popular political party in the country and by not allotting it symbol millions of its voters would be disenfranchised”.

ECP counsel Sikander Bashir Mohmand contended that the interim relief order of the high court had now been affecting the functioning of the ECP in different matters. He added that around 19 cases related to intra-party polls and allotment of election symbols to political parties were pending with the commission, but the commission could not proceed due to the high court’s order. He cited different judgements of the apex court, arguing that the commission was fully competent to pass a judicial order on the matter and its order of Dec 22 did not suffer from any legal weakness.

Advocate Naveed Akhter appeared for one of the respondents Jehangir Khan, and stated that his client was “the vice president of PTI’s Charsadda” chapter and had challenged the intra-party polls before the ECP. However, he added that the next day his membership was cancelled by the party.

Published in Dawn, January 4th, 2024