ISLAMABAD: The Supreme Court on Thursday ruled that a political party must never be deprived of its election symbol for some minor violation, but forsaking intra-party elections (IPE) was a major violation of law and the Constitution.

The 38-page detailed judgement also placed blame on the party leaders, holding that those in charge of the Pakistan Tehreek-i-Insaf (PTI) were adamant about not holding IPE, and their intransigence alone deprived the PTI of its symbol.

Authored by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the detailed judgement explained why, on Jan 13, a three-judge bench upheld the Dec 22, 2023 Election Commission of Pakistan’s (ECP) decision of depriving the PTI of its iconic election poll symbol — cricket bat.

The three-judge Supreme Court bench, also consisting of Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, had announced the judgement late in the night at 11:15am after hearing a hurriedly move ECP’s challenge to the Peshawar High Court’s decision of restoring PTI’s election symbol.

Detailed judgement blames party leaders for refusing intra-party polls, defends legality of Elections Act 2017

The verdict said political parties, which failed to hold IPE, in fact sever relationships with their members and render the party a mere name without meaning or substance if they failed to hold such polls.

In the present case, the CJP explained that the court was not delving into the mode and manner in which IPE is held but rather was restricted to inquiring and determining whether intra-party polls were held at all in the PTI.

As a consequence of not holding IPE in PTI, the judgement explained that the party became ineligible to be allocated the election symbol, and the sole responsibility for it lies on those running the affairs of PTI, who did not want democracy in the party.

“They unilaterally and arbitrarily took over a political party in utter disregard of 850,000 PTI members,” the judgement regretted, adding that because of these actions and by negating the very fundamentals of democracy, i.e., not holding elections, the party suffered and was rendered ineligible to receive its election symbol.

Had IPE been held, all benefits mentioned in the Elections Act 2017 would accrue, including the party getting its symbols, the judgment emphasised. While discussing the importance of IPE, it also cited instances from the Supreme Court of Nebraska, Pennsylvania, as well as other states of the United States, which recognised that the right to freely choose candidates for public office was as valuable as the right to vote for them after they are chosen.

Referring to the United Kingdom, the judgement explained that there was no specific law to mandate IPE, but it could not be contemplated that a political party would not hold such elections there.

In 2022, Boris Johnson of the Conservative Party resigned from his position as the prime minister but did not appoint his own successor. His successor, Elizabeth Truss, defeated Rishi Su­­n­­ak in the Conservative Party leadership election on Sept 5, 2022. How­­ever, she too resigned, and Rishi Sunak was elected unopposed.

The verdict also mentioned the arguments of PTI’s main counsel Syed Ali Zafar who disparaged the Elections Act by contending that its provisions, requiring holding of IPE and imposing penalty of taking away the symbol of the party, contravened Article 17 of the Constitution and, as such, was not sustainable in view of the judgement in the Benazir Bhutto case.

But the judgement reminded that the Elections Act was promulgated by a democratically elected parliament, which was not hurriedly enacted. The draft of the law was sent to the National Assembly Standing Committee and then debated on the floor of the National Assembly for four days, after which it was sent to the Senate and thoroughly examined in the Senate’s Standing Committee.

During the debate, PTI Senator Muhammad Azam Khan Swati even suggested reducing the period of IPE from the present five years to three years, as provided in the constitution of the PTI, but this suggestion was not approved.

The laws of Pakistan enacted by parliament must be abided by, including by judges of the superior courts, whose oath of office also requires adherence to these laws, the verdict said.

“Unless a law, or any provision thereof, is challenged and is found to contravene the Constitution and declared unconstitutional, it must be given effect to,” the judgement emphasised, adding that the Elections Act became law on Oct 2, 2017, and during the last six years no successful challenge has been thrown to it or with regard to any of its provisions.

Published in Dawn, January 26th, 2024