High courts can set aside ECP orders: PHC

 The Peshawar High Court (PHC) has noted that it is a fundamental right of a political party that it gets an environment which is conducive to contest elections for parliament and provincial assemblies as well as to form a government in case it gets majority.

“It [a political party] has the right to contest elections under a common symbol. This constitutional right cannot be denied to it on the basis of [an] absurd provision of law,” the PHC stated in a 26-page verdict on the PTI’s petition filed against an order of the Election Commission of Pakistan (ECP).

The ECP on Dec 22 invalidated the PTI’s intra-party polls, a move that resulted in the party getting deprived of its iconic election symbol of a cricket bat.

The party challenged the move in the PHC whose division bench on Jan 10 declared the ECP’s decision as null and void.
While examining the question as to whether the court had the jurisdiction to hear the petition filed against the ECP order, the PHC referred to a number of court orders.

The verdict discussed authorities—established under the Constitution or any federal law—which performed functions in connection with the affairs of federation or any other constitutional functions which had any nexus with any province.

“No matter where the principal secretariat of [such an] authority is situated, if it passes any order or undertakes any proceedings in relation to any person or group of person who are residing in a province or the cause of action has emanated from the province leading to the decision by the constitutional forum or other authority like the ECP, then the High Court of the Province in whose territory the order would affect the person would be competent to exercise jurisdiction in the matter.

“In the present case, admittedly, the [intra-party] elections had taken place in the province of Khyber-Pakhtunkhwa (K-P) and the ECP for that purpose resides in the province, therefore, in our humble view this Court as well as the Islamabad High Court have concurrent jurisdiction in the matter,” it said.

The court noted that the ECP is not a court or a tribunal.

“However, Article 218(3) of the Constitution entrusts it with the duty ‘to organise and conduct the election’, and empowers it, in general terms, ‘to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against’.”

The PHC stated that the power so conferred to the polls oversight authority was restricted to the fulfilment of the duly specified, that is, "to organise and conduct the election".

It said the ECP, despite being a constitutional body, had the jurisdiction to exercise its powers either under the Constitution or the Elections Act, 2017.

Its general power under Article 218(3) of the Constitution could not be abridged by any legislative instrument/act of parliament. However, its other functions arising out of the Elections Act must be exercised with the expressed authority of the Elections Act, the order said.

The court noted that the verbiage of Section 208 of the Elections Act, 2017 did not authorise the ECP either to supervise intra-party polls or entertain any complaint about any irregularity in such elections.