PESHAWAR: The Election Com­mission of Pakistan (ECP) has no jurisdiction to issue a decision on political parties’ intra-party elections, the Peshawar High Court (PHC) has ruled.

On Saturday, PHC issued a detailed order on PTI’s petition challenging ECP’s decision of not allotting the party its election symbol ‘bat’.

The detailed verdict came three days after a two-member bench, comprising Justice Ijaz Anwar and Justice Syed Arshad Ali, overruled ECP’s decision.

In their order, the judges ruled that a political party has the right to contest elections under a common symbol and this constitutional right can’t be denied to it on the basis of an “absurd provision of law”.

“The impugned decision of the ECP is backed by no legal provision either under the Act [Elections Act] or under the Constitution. Therefore, the same is illegal,” said the 26-page detailed judgement.

In detailed order, court says commission can’t question intra-party elections

While setting aside the ECP’s order of Dec 22, the bench had also directed the ECP to publish ‘bat’ as PTI’s symbol on its website.

Overruling the ECP’s objection about PHC jurisdiction, the bench discussed different judgments of the superior courts and concluded that the PTI’s party elections took place in Khyber Pakhtunkhwa; therefore, PHC and the Islamabad High Court have concurrent jurisdictions in the matter.

Referring to past precedents set by superior courts, the bench ruled: “The survey of the case law stated above and the enabling provision of the Constitution, as well as the Act, lead us to the conclusion that it is the fundamental right of every citizen of Pakistan not only to form political party but the political party should be provided a conducive atmosphere to contest election for the Parliament, Provincial Assembly, Senate and to form a Government.”

The judgement, authored by Justice Ali, added that different provisions of the Constitution and the Elections Act were discussed, and the outcome of that discussion was that ECP’s action of refusing PTI its symbol has “the effect of depriving the petitioners and its members to freely participate in the affairs and governance of Pakistan through political activities as guaranteed through Article 17(2) of the Constitution”.

“Indeed, the Constitution of 1973 has ensured that every citizen in Pakistan has the right to form or to be a member of a political party subject to any reasonable restriction imposed by law in the interest of sovereignty or integrity of Pakistan.”

The bench also discussed ECP’s jurisdiction to question, probe and issue an order on intra-party election disputes.

About section 208 of the Elections Act, dealing with intra-party polls, the bench observed: “The verbiage of Section 208 does not authorise the ECP either to supervise the intra-party election or entertain any complaint regarding any irregularity in the said election”.

However, it added that under Section 209, a political party is bound to submit a certificate signed by office-bearers with the ECP within seven days of the intra party polls to establish that they were held in accordance with the party’s constitution of a political party and the Elections Act.

The court further ruled that it was ECP’s “statutory duty” to publish the party’s symbol on its website within seven days of the submission of intra-party documents.

“Section 209 of the Elections Act, 2017 does not confer any jurisdiction on the ECP to question the intra-party election process.”

The bench added that any party who has complied with sections 202, 206, 209 and 210 of the Elections Act 2017 “becomes eligible for an election symbol for contesting election” for national, provincial and local assemblies.

The said sections deal with the enlistment of political parties with the ECP, intra-party elections and declaration of funding sources.

The order added that Section 215(5) — outlining the condition for not allocating an election symbol to a party — “can be invoked only when a political party, despite a show-cause notice, fails to comply with provision of sections 209 or 210 of the Elections Act, 2017”.

Published in Dawn, January 14th, 2024

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