Judges poke holes in apex court judgement on ‘bat’ symbol

ISLAMABAD: The Supreme Court judgement on Jan 13 which denied the electoral symbol of ‘bat’ to the PTI remained a bone of contention among the superior judges as the 13-strong full court took up a set of petitions challenging the denial of reserved seats to the PTI-backed Sunni Ittehad Council (SIC).

A three-member bench consisting of Chief Justice Qazi Faez Isa, Justice Mohammad Ali Mazhar, and Justice Musarrat Hilali anno­unced the judgement on Jan 23, 2024, and upheld the Election Commission of Pakistan’s decision to deprive the PTI of its symbol for not conducting intra-party polls.

The CJP, however, spent a better part of the hearing defending the verdict which was criticised by his colleague Justice Munib Akhtar who said the PTI lost its poll symbol because of the SC judgement which led to a “cascading series of errors” by the ECP.

“On the ballot paper, PTI needs to be recognised with the election symbol,” Justice Akhtar said.

On the other hand, CJP Isa observed why the PTI candidates did not demand the bat symbol independently in each constituency. But Faisal Siddiqui, a senior counsel representing the SIC, contended that demanding the bat symbol would be a clear subversion of the Jan 13 judgement.

Justice Syed Hasan Azhar Rizvi wondered whether the election symbol of a political party could be allocated to an independent candidate. The counsel replied in negative. Then Justice Athar Minallah asked whether the bat symbol was offered to the candidates after the Jan 13 verdict. The counsel again replied in negative.

Justice Akhtar explained that asking for the bat symbol by the candidates would mean allowing the PTI to do indirectly what it could not do directly and this would mean a violation of the Supreme Court judgement, resulting in contempt applications the very next day.

The CJP, however, interjected, asking that “did the judgement say that individuals could not be allotted the bat symbol”. “Be bold enough, you are the counsel of this court,” CJP Isa observed while pointing towards the counsel. The judgement did not expressly say so, the counsel conceded.

At this, Justice Ayesha A. Malik observed that the issue of independent candidates was not before the Supreme Court. “Can the counsel answer the question please,” the CJP interjected. According to the CJP, the courts do not decide issues on the basis of assumptions. He recalled that the court had told the PTI they still had time to decide about holding intra-party polls.

Justice Muhammad Ali Mazhar reminded the court at the time was not seized with the election symbol case but the PTI intra-party elections.

During the hearing, an argument was raised that PTI may find some difficulty in getting the reserved seats, but the court had provided the PTI with an option to approach it again in case of any issue.

At one point, the CJP said it was “very disconcerting” that people do not bother reading the judgement. “Either read a paragraph to show you understood (perceived) the judgement because you may have understood it wrongly.”

“It is a judgement of the court, it has to be implemented,” Justice Akhtar emphasised again, adding that “speaking for himself the exorable logic of the Jan 13 judgement leads only to one conclusion that the bat election symbol was off the book and no one can get it for the Feb 8, 2024 general elections. Full Stop”.

“Anything that deviates from this logic deviates from the judgement, and this is the problem which PTI-backed nominees faced,” Justice Akhtar said.

“Very strong views on logic are being expressed,” the CJP regretted, stating: “We have not taken oath on the logic of the Constitution, but the text of the Constitution and the law.”

“I am not bound by someone’s logic or that of my own,” CJP Isa said, adding he has never come across such a contention. “I want to clarify in the full court that we go by the text of the written word.”

Sensing the bitterness, Justice Syed Mansoor Ali Shah suggested the counsel to proceed with his arguments.

But the counsel could only say “the way to navigate these conflicting interpretations [of the judgement]” before he was interrupted by the CJP who said that “an interpretation is required when the language is not clear” and then asked the counsel to proceed with his arguments. “The issue before us is how the ECP interpreted and implemented the judgement,” Faisal Siddiqui said.

During the hearing, the lawyer argued that the PTI took a stance before the ECP that even if the election symbol had been taken away, they were still the PTI candidates, but the ECP rejected the argument and declared them independent candidates.

The CJP observed that the petitioner [SIC] was facing a problem since they were trying to identify them as PTI candidates, but the ECP said since PTI did not get the symbol, the petitioner would also not get the same symbol.

“Had the candidates identified them as independent candidates, they could have asked for the bat symbol since it was in no one’s domain,” he said.

On a lighter note, the counsel said, all these problems could have been solved had the Supreme Court in its Jan 13 judgement annexed an explanatory note similar to what was done in the cases regarding the Customs Act.

At this, CJP Isa observed that these problems would have been further solved in an amicable manner, had the party, which the counsel was not representing, conducted its intra-party elections.

Justice Minallah reminded that PTI was consistently complaining that it was not getting a level playing field to contest the elections.

“The challenges for the political party which were complaining about the coercive apparatus of the state has not happened for the first time rather happening repeatedly and every political party had faced it at one point. We may pretend as if everything was honky dory, but it is not,” said Justice Minallah.