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Official Citation: 2024 PLJ 869
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: The Election Commission of Pakistan through its Secretary and others vs JUDGMENT
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-12-31, officially reported as 2024 PLJ 869. In this matter between The Election Commission of Pakistan through its Secretary and others and JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2024 SC 869
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Ali Mazhar, Musarrat Hilali, Qazi Faez Isa (C.J) Title:The Election Commission of Pakistan through its Secretary and others vs
JUDGMENT
Reported As:2024 SCP 32, PLD 2024 Supreme Court 267, PLD 2024 Supreme Court 295, 2024 SCP 13, PLJ 2024 SC 869 Result: Petition Converted into Appeal and Allowed Judgment
JUDGMENT Qazi Faez Isa, CJ. This case is about intra-party elections. It would be apt to start by quoting one of the founders of a political party, a learned senior counsel who represents some of those before us. 'Intra-party elections should be held at every level to promote democratic culture within the party. Such elections should be held with secret ballot and the political parties should not be fiefdoms of their leaders. By introducing electoral process within the political parties the democratic culture will be promoted. There will be greater opportunity for the parties to grow and develop leadership within their own ranks. The existing ruling elite has deliberately avoided holding of internal elections of their political parties and is running them arbitrarily at the will and whims of their leaders.'[1] Background and Representation 2. The petition before us challenges the short order dated 10 January 2024, followed by the twenty- six page judgment of the Peshawar High Court passed in Writ Petition 6173-P/2023.[2] The said petition had challenged the order dated 22 December 2023 passed by the Election Commission of Pakistan ('ECP'). The order dated 22 December 2023 titled - 'Hearing in Connection with the intra party elections of Pakistan Tehreek-e-Insaf'[3] was unanimously passed by the Commissioner and all four Members of the ECP. The order decided the complaints received from fourteen complainants, arrayed herein as respondents No. 9 to 22 ('the complainants'), and the objections of the 'Political Finance Wing' of the ECP with regard to the intra-party elections of the Pakistan- Tehreek-e-Insaf ('PTI').
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3.Through a short order announced by us in Court on 13 January 2024 ('the Short Order')[4] this petition for leave to appeal was converted into an appeal and allowed. The learned Mr. Makhdoom Ali Khan represented the ECP, learned Mr. Ahmad Hassan Shah represented respondent No. 10 and supported ECP's submissions and learned senior counsel Mr. Hamid Khan and learned counsel Mr. Ali Zafar represent respondents No. 1 to 8 ('the contesting respondents'). We heard at length all the learned counsel, and the parties who were not represented by counsel, till late in the evening because the date of the general elections is 8 February 2024 and the ECP had already issued the Election Programme which would have been derailed if the decision of this case was delayed. The following are the detailed reasons for the Short Order. The Elections Act, 2017 4. The Elections Act, 2017 ('Elections Act') is a comprehensive piece of legislation which sets out 'to amend, consolidate and unify laws relating to the conduct of elections and matters connected therewith or ancillary thereto' as its Preamble stipulates. With a view to having just one law on the subject of elections and matters related thereto the Elections Act repealed a number of laws. Section 241 of the Elections Act repealed the following eight laws: '(a) the Electoral Rolls Act, 1974 (Act No. XXI of 1974); (b) the Delimitation of Constituencies Act, 1974 (Act No. XXXIV of 1974); (c) the Senate (Election) Act, 1975 (Act No. LI of 1975); (d) the Representation of the People Act, 1976 (Act No. LXXXV of 1976); (e) the Election Commission Order, 2002 (Chief Executive's Order No.1 of 2002); (f) the Conduct of General Elections Order, 2002 (Chief Executive's Order No.7 of 2002); (g) the Political Parties Order, 2002 (Chief Executive's Order No.18 of 2002); and (h) the Allocation of Symbols Order, 2002.' 5. The Elections Act recognizes the right of every political party to make its own constitution, provided it complies with the requirements of section 201 of the Elections Act, including the procedure for holding of intra-party elections. Section 201 is reproduced hereunder: '201. Constitution of political parties.-(1) A political party shall formulate its constitution, by whatever name called, which shall include- (a) the aims and objectives of the political party; (b) organizational structure of the political party at the Federal, Provincial and local levels, whichever is applicable; (c) membership fee to be paid by the members, where applicable; (d) designation and tenure of the office-bearers of the political party; (e) criteria for receipt and collection of funds for the political party; and (f) procedure for- (i) election of office-bearers; (ii) powers and functions of office-bearers including financial decision-making; (iii) selection or nomination of party candidates for election to public offices and legislative bodies; (iv) resolution of disputes between members and political party, including issues relating to suspension and expulsion of members; and (v) method and manner of amendments in the constitution of the political party. (2) Every political party shall provide a printed copy of its constitution to the Commission. (3) Any change in the constitution of a political party shall be communicated to the Commission within fifteen days of incorporation of the change and the Commission shall maintain updated record of the constitutions of all the political parties.' 6. Chapter XI of the Elections Act is titled 'Political Parties' and its section 208 mandates the holding of 'Elections within a political party'. Section 208 is reproduced hereunder:
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'208. Elections within a political party.- (1) The office-bearers of a political party at the Federal, Provincial and local levels, wherever applicable, shall be elected periodically in accordance with the constitution of the political party: Provided that a period, not exceeding five years, shall intervene between any two elections. (2) A member of a political party shall, subject to the provisions of the constitution of the political party, be provided with an equal opportunity of contesting election for any political party office. (3) All members of the political party at the Federal, Provincial and local levels shall constitute the electoral-college for election of the party general council at the respective levels. (4) The political party shall publish the updated list of its central office bearers and Executive Committee members, by whatever name called, on its website and send the list, and any subsequent change in it, to the Commission. (5) Where a political party fails to conduct intra-party elections as per given time frame in their constitution, a show cause notice shall be issued to such political party and if the party fails to comply with, then the Commission shall impose fine which may extend to two hundred thousand rupees but shall not be less than one hundred thousand rupees.' 7. The members of a political party infuse life into it. Those elected as office holders via intra-party elections receive the mandate to run the party and determine its affairs. After a political party has held its intra-party elections it is required to provide a certificate 'that the elections were held in accordance with the constitution of the political party and this Act', that is, the Elections Act. Such certificate can only be issued after the holding of intra-party elections. The relevant provisions of the Elections Act which attend to this are contained in section 209, reproduced hereunder: 209. Certification by the political party.-(1) A political party shall, within seven days from completion of the intra-party elections, submit a certificate signed by an office-bearer authorized by the Party Head, to the Commission to the effect that the elections were held in accordance with the constitution of the political party and this Act to elect the office-bearers at the Federal, Provincial and local levels, wherever applicable. (2) The certificate under sub-section (1) shall contain the following information- (a) the date of the last intra-party elections; (b) the names, designations and addresses of office-bearers elected at the Federal, Provincial and local levels, wherever applicable; (c) the election results; and (d) copy of the political party's notifications declaring the results of the election. (3) The Commission shall, within seven days from the receipt of the certificate of a political party under sub-section (1), publish the certificate on its website. 8. Chapter XII of the Elections Act is titled 'Allocation of Symbols'. An election symbol discloses to voters, and in particular to illiterate voters, the person or political party they seek to vote for. The relevant provision requiring consideration for the purpose of this case is section 215 of the Elections Act which is reproduced hereunder: 215. Eligibility of party to obtain election sym bol.- (1) Notwithstanding anything contained in any other law, a political party enlisted under this Act shall be eligible to obtain an election symbol for contesting elections for Majlis-e-Shoora (Parliament), Provincial Assemblies or local government on submission of certificates and statements referred to in sections 202, 206, 209 and 210. (2) A combination of enlisted political parties shall be entitled to obtain one election symbol for an election only if each party constituting such combination submits the certificates and statements referred to in sections 202, 206, 209 and 210. (3) An election symbol already allocated to a political party shall not be allocated to any other political party or combination of political parties.
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(4) Where a political party or combination of political parties, severally or collectively, fails to comply with the provision of section 209 or section 210, the Commission shall issue to such political party or parties a notice to show cause as to why it or they may not be declared ineligible to obtain an election symbol. (5) If a political party or parties to whom show cause notice has been issued under sub-section (4) fails to comply with the provision of section 209 or section 210, the Commission may after affording it or them an opportunity of being heard, declare it or them ineligible to obtain an election symbol for election to Majlis-e-Shoora (Parliament), Provincial Assembly or a local government, and the Commission shall not allocate an election symbol to such political party or combination of political parties in subsequent elections. 9. It may be noted from the abovementioned provisions of the Elections Act that it mandates the holding of intra-party elections and provides for penalties if elections are not held. If a political party is errant and 'fails to conduct intra-party elections as per given time frame in their constitution'[5] the ECP 'shall impose a fine which may extend to two hundred thousand rupees but shall not be less than one hundred thousand rupees'.[6] This provision was inserted into the Elections Act recently.[7] However, if a political party does not hold elections within the stipulated 'five years'[8] then the ECP, after issuing show cause notice and providing an opportunity of being heard, 'shall not allocate an election symbol to such political party.'[9] This provision has always existed in the Elections Act, it was not inserted later. Both of the following scenarios would constitute a violation of section 209 of the Elections Act: (a) A political party fails to submit a certificate as required by section 209 of the Elections Act; or (b) A political party submits a certificate under section 209 of the Elections Act, which certificate is false because no intra-party elections were held by the party in accordance with the party's constitution and the Elections Act. Either of these scenarios would entitle the ECP to issue a show cause notice to the party under section 215(4) of the Elections Act and, if the violation is not cured, the consequences envisioned in section 215(5) of the Elections Act would follow, that is, the party would not be eligible to obtain an election symbol. ECP's Conduct 10. The contesting respondents have raised questions about the conduct of the ECP and alleged that it has not acted fairly and in accordance with law. Therefore, we examined how the ECP had proceeded in the matter. The prescribed period had expired without intra-party elections having been held in the PTI. Therefore, the ECP vide its letter dated 24 May 2021 had called for the holding of intra-party elections in the PTI, but the ECP's advice was ignored. The ECP then issued a show cause notice on 27 July 2021 with regard to the non-holding of intra-party elections in the PTI. The reply to the show cause notice acknowledged that elections had not been held and a request was made that the time for holding of intra-party elections be extended by a year. It was not contended that the law did not empower the ECP to withhold election symbol or that such a provision was unconstitutional. On 24 August 2021 the ECP granted the extension. During the time of the issuance of these notices PTI was governing in the Federation and Mr. Imran Ahmad Khan Niazi was the Prime Minister. The PTI was also governing in the provinces of Punjab and Khyber Pakhtunkhwa. Therefore, the allegations of partisanship which were subsequently levelled against the ECP are incomprehensible. 11. Despite issuing notices to hold elections and granting an additional year's time, intra-party elections were still not held in the PTI. Therefore, the ECP through its letter dated 27 March 2022 reminded the PTI that elections must be held, but the command of the law was ignored. The ECP wrote another letter dated 16 April 2022 to the same effect, and then issued final notice on 21 May 2022 directing that intra-party elections be held in the PTI. In response it was stated that intra-party elections had been held on 8 June 2022. The ECP did not accept this assertion, and through its letters dated 22 June 2022, 19 July 2022 and 4 August 2022 noted a number of discrepancies.
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Correspondence was also exchanged with regard to the purported amendments made to the constitution of the PTI. 12. Eventually the ECP issued a show cause notice on 2 August 2023 and directed that intra-party elections be held in the PTI, but elections were still not held. The ECP heard the matter on 13 September 2023 and vide order dated 23 November 2023, after finding that intra-party elections in the PTI were not held, ordered that they be held within twenty days. 13. The contesting respondents stated that fresh intra-party elections were held on 2 December 2023. The complainants complained to the ECP that intra-party elections in the PTI had not been held. The ECP also conveyed its own reservations vide letter dated 7 December 2023, which were responded to by the letter dated 8 December 2023. The ECP was not satisfied with the reply, and fixed the hearing on 18 December 2023 with regard to the matter of non-holding of intra-party elections in the PTI. 14. The ECP, comprising of its Commissioner and four Members, after hearing the parties, unanimously passed order dated 22 December 2023, which concluded as follows: '30. So keeping in view, the clear mandate of Elections Act, 2017 read with PTI constitution 2019, and for reasons mentioned hereinabove, it is held that PTI has not complied with our directions rendered therein order dated 23rd November, 2023 and failed to hold intra-party election in accordance with PTI prevailing Constitution, 2019 and Election Act, 2017, and Election Rules, 2017. Therefore, the certificate dated 4th December, 2023 and Form-65 filed by the alleged Chairman, is hereby regretted and rejected accordingly. The provisions of Section 215 of the Election Act, 2017 are hereby invoked and PTI is hereby declared ineligible to obtain, the Election Symbol, for which they have applied for.' Was sufficient notice given by the ECP before it decided that the PTI was not eligible to get an election sym bol? 15. In the instant case no one sought to deprive the PTI of an election symbol; not the ECP, the Government nor any political party. The ECP not once but repeatedly had called for the holding of intra-party elections in the PTI and had clearly spelt out the consequences if elections were not held. In this regard the ECP issued notices and passed orders, which in chronological order are reproduced hereunder: ECP's letter dated 24 May 2021 '... a political party is to conduct intra-party elections in accordance with its constitution, a mandatory requirement under the law to sustain/retain the already allotted election symbols. And to contravene with prescribed legal provisions, a political party shall be issued show cause notice(s) by the Election Commission and election symbol whereof shall be withdrawn enabling the party ineligible to obtain an election symbol for the elections to come.' '2. ... it is advised that intra-party elections of your political party may be conducted timely in a manner provided in party's constitution to avoid being declared ineligible as given in law.' ECP's show cause notice dated 27 July 2021 'WHEREAS, Section 215(1) of the Act ibid provides that a political party enlisted under the Elections Act, 2017 shall be eligible to obtain an election symbol for contesting elections for Majlis-e-Shoora (Parliament), Provincial Assemblies or local government on submission of certificates of intra-party elections. NOW THEREFORE, in terms of Section 215(4) of the Elections Act, 2017, you are required to show cause as to why your party may not be declared ineligible to obtain an election symbol for upcoming Election(s).' ECP's letter dated 24 August 2021 '... the Hon'ble Election Commission has accepted your request and advised to conduct intra-party elections of the chairman and other office bearers well before 13th June, 2022.'
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ECP's letter dated 7 March 2022 '... you are once again reminded that the intra-party elections of the Chairman and other office bearers of your party may be ensured well before 13th June, 2022 and in this regard no further extension will be granted.' ECP's letter dated 16 April 2022 '... you are once again reminded that the intra-party elections of the Chairman and other office bearers of your party may be ensured well before 13th June, 2022.' ECP's Final Notice dated 21 May 2022 for conduct of Intra-Party Elections '... a political party ... which fails to do so [hold intra-party elections] ... election symbol whereof shall be withdrawn.' ECP's Notice dated 2 August 2023 'Under section 215 of the Act ibid, if any political party fails to comply with the provisions of the said section 209, this Commission is empowered to declare the said political party ineligible to obtain an election symbol.' ECP's Order dated 13 September 2023 '... ineligible to obtain an election symbol for election to Majlis-Shoora (Parliament) etc.' The Elections Act mentions the issuance of a notice but ECP issued repeated notices and also multiple reminders. Therefore, we have no doubt that the ECP gave more than sufficient time for compliance with the requirement to hold intra-party elections in the PTI. Litigation with regard to intra-party elections in PTI 16. The ECP had passed an order[10] on 23 November 2023 and took a lenient view by giving another opportunity for the holding of intra-party elections in the PTI. The order concluded as under: 'therefore it is held that respondent party is failed to hold its intra party election within the extended period of one year, till 13-06-2022, but we instead of taking the final step to invoke the provision of section 215(5) of the Election Act, 2017, a lenient view is taken with direction to the respondent party to hold its intra party election strictly in accordance with the prevailing party constitution, within 20 days positively and its result along with all the required documents, including form 65 shall be submitted thereafter the election within 7 days before the Commission. In case, the respondent party failed to comply with direction of the Commission and failed to hold its intra party election within the prescribed 20 days which will run from today, the date on which this order is announced, in such eventuality the respondent will suffer the penal consequences of Section 215(5) of Election Act, 2017 accordingly and would be ineligible to obtain an election symbol for election to Majlis-e- Shoora (Parliament) etc.' 17. The above order was challenged before the Lahore High Court by the PTI and Mr. Imran Ahmad Khan Niazi. The High Court's constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan ('the Constitution') was invoked by filing Writ Petition 81171/2023 ('the 1st case'). The petitioners alleged that intra-party elections were held in the PTI on 8 June 2022 and that in these elections Mr. Imran Ahmad Khan Niazi was elected as Chairman. The following prayer was made in the petition: '(a) Declare and hold that the Impugned Order 23-11-23 is misconceived, corum non-judice and set it aside, inter alia, on facts and grounds as urged hereinabove; (b) Declare, find and hold that intra-party elections dated 10-06-2022 had been validly held in accordance with the party Constitution and law; (c) Declare that Amendment to Art.5, Clause.5 had been validly and lawfully made in accordance with law and party Constitution; (d) In the meanwhile, this Court may kindly be pleased to suspend the operation of the Impugned Order dt.23-11-2023 and restrain the ECP from passing any further adverse order till final disposal of
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the titled petition. (e) Any other relief as deemed just and appropriate may also be granted in favor of Petitioners;' Learned Messrs Ali Zafar and Gohar Ali Khan, represented the petitioners. 18. The 1st case was heard on 8 December 2023 by a learned single Judge before whom the petitioners requested that a larger Bench be constituted to hear the case. Accordingly, the matter was adjourned by ordering that the request for the formation of a larger bench be placed before the Chief Justice 'for appropriate orders'. The Chief Justice conceded to the petitioners request and constituted a five-member Bench. The petition was heard by the five-member Bench on 15 December 2023 when notice was issued to the ECP. However, the Court ordered that the learned counsel 'shall address their arguments on the question of maintainability of the instant constitutional petition'. When we heard the instant case the status of the 1st case was checked and it transpired that it was pending. The question raised by the five-member Bench about the maintainability of the petition was left unaddressed and undetermined. 19. When the 1st case was pending adjudication in the Lahore High Court another petition, Writ Petition 5791/2023 ('the 2nd case'), was filed in the Peshawar High Court on 9 December 2023. PTI was arrayed as petitioner No. 1, through its 'authorized person', but it was not disclosed who the authorized person was. The only other petitioners were Messrs Muhammad Zahir Shah and Anwar Taj, who described themselves as 'Vice President, PTI KPK', however, the matter was not restricted to non-holding of elections in Khyber Pakhtunkhwa. It was alleged in the 2nd case that intra-party elections in the PTI were held on 2 December 2023 and that their validity could not be questioned by the ECP and that the 'objections filed' should not be entertained. But those who had filed the said objections were not arrayed in the petition. On 11 December 2023, without first issuing notice to the ECP, the Peshawar High Court directed the ECP not to pass 'a final order' and the case was ordered to be fixed on 19 December 2023. The learned Mr. Gohar Ali Khan was the petitioners' counsel; he submitted an application[11] on 15 December 2023 to ante date the case and had the order passed on 11 December 2023 varied, to direct the petitioners to 'appear before the Election Commission Pakistan' but the ECP was restrained from passing 'any adverse order'. The Peshawar High Court disposed of the 2nd case on 21 December 2023 by passing the following order: 'We deem it appropriate to direct the worthy Election Commission of Pakistan, respondent herein, to decide the matter, so pending before it by 22nd instant positively, strictly in accordance with law.' 20. Against the order of ECP dated 22 December 2023 (operative part whereof is reproduced in paragraph 14 above) Writ Petition 287/2024 ('the 3rd case') was also filed in the Lahore High Court, wherein the following reliefs were sought: '(a) Instant petition may kindly be accepted, hold and declare that the impugned Order of ECP dated 22.12.2023 is without jurisdiction, without lawful authority and…
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