The Judicialisation of Party Politics: Pakistan’s Supreme Court confirms the Election Commission can review Intra-Party Elections

by | Feb 5, 2024

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About Raza Nazar

Raza Nazar is a Bachelor of Civil Law (BCL) Candidate at Trinity College, University of Oxford, with interests in constitutional law, jurisprudence and political theory. He is the 3 Verulam Buildings Scholar for 2023-2024 and an Oxford Pakistan Programme Scholar. Raza graduated from the London School of Economics (LSE) with a Double First in Law in 2018. While at LSE, in 2016, Raza founded a development forum, the LSE Future of Pakistan Conference, which provides a discursive platform for ministers, judges, scholars and students on an annual basis. Raza has authored various articles, including an OUCLJ paper on the Pakistani Supreme Court case, Jurists Foundation v Federal Government, on the tenure extension of the Chief of Army Staff. Raza has also been interviewed by BBC World News during landmark UK Supreme Court hearings, including the case of prorogation, Cherry/Miller v The Prime Minister. Between 2019 and 2021, Raza trained with Slaughter and May. He subsequently worked as an international trade lawyer at Akin, the second-largest lobbying firm in the United States.

On 25 January 2024, the Supreme Court of Pakistan (SCP) held that political parties have a duty to hold intra-party elections. The SCP upheld an order of the Election Commission of Pakistan (ECP) which stated that one of Pakistan’s most popular national parties, the Pakistan Tehreek-e-Insaf (PTI), was ineligible to obtain their election symbol – the Bat – due to a failure to hold intra-party elections. The SCP’s decision has important consequences because those who cannot read rely on symbols to identify the party they want to choose on the ballot.

Internationally, the right to form political parties is a relatively new right. It is not included in the Universal Declaration of Human Rights nor the International Covenant on Civil and Political Rights (ICCPR). As Chilton and Versteeg note, in 1946 a mere 8 percent of constitutions included the right to form political parties, but by 2016 that number had grown to 65 percent. Since the right is relatively novel, its contours are less defined and ripe for interpretation by specific countries.

The ECP’s order

On 22 December 2023, the ECP invoked the Election Act 2017 (the Act) to declare that PTI was ineligible to obtain the election symbol they had applied for. The ECP alleged that the PTI failed to comply with section 209 of the Act, which required the PTI to, “within seven days from completion of intra party elections”, submit a certificate to the ECP confirming that elections were held in accordance with PTI’s constitution. The ECP made its order on the basis that no evidence was provided that a Federal Election Commission was appointed for intra-party elections under PTI’s Constitution.

The right to vote: intra-party or national?

Article 17 of the Constitution of the Islamic Republic of Pakistan provides every citizen the right to form or be a member of a political party. For the SCP, if intra-party elections were not held in a party, it rendered that party “a mere name without meaning” [26]. It also violated a person’s right to form or be a member of a political party, which includes the ability to put oneself forward as a candidate and vote for candidates of their choice [31]. The SCP, quoting judgments of various US States, held that the right to freely choose candidates for party office is “as valuable” as a right to vote for them after they are chosen [54].

The SCP’s reasoning introduces a tension between two related rights. The first is the right to vote freely for a candidate of one’s choice at a national level. Any restrictions on that right strike “at the heart of representative government” (Justice Shah at Elahi v ECP [1]). The second is the right to be a member of a party, which, according to the SCP, must also cover the ability to vote for party candidates. While holding these rights to be equally “valuable”, the SCP appears to have disregarded the national position. The fact that PTI has lost its electoral symbol makes the elections inaccessible to voters who cannot read. As the Peshawar High Court noted, the use of a symbol has a “unifying effect” and ultimately helps in the establishment of a democracy [23].

A historical construction?

The SCP also noted the ECP was a constitutional body which had duties confirmed by Workers’ Party Pakistan v Federation of Pakistan [39], such as the duty of “regulating intra-party affairs”. That duty was set out against the backdrop of the previous version of Article 17 of the Constitution, which had required that “every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders” [44]. The duty of PTI to submit a certificate under section 209 of the Act could only be fulfilled after the conclusion of intra-party elections [55]. Against that, the SCP held there was no evidence provided by counsel to show intra-party elections were held, noting the absence of nomination forms [28].

The SCP gave questionable weight to repealed laws on ‘intra-party’ elections. The present laws were enacted by a democratically elected Parliament and, as the SCP noted, “must be abided by” [43]. Bearing Pakistan’s fragile experience with democracy in mind, the decision also sets two worrying precedents. First, the ECP can make inquiries about the way intra-party elections are held. This means that parties can be deprived of their electoral symbol for mere procedural errors, which harms the ability of voters who cannot read to express their choices. Second, the SCP can, beyond assessing errors of law, make a finding of fact as to whether an election was held at all. The SCP’s appeal to repealed law and its fact-finding approach is difficult to reconcile with the decision of the Peshawar High Court, which found that elections did take place (“widely reported in print electronic media not only in Pakistan but even internationally” [8]) and that it was not for the ECP to question their legitimacy [19].

In a nation where no prime minister has yet served their full five-year term, another tool has emerged to take away political choice from the people.

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