SHAHID BILAL HASSAN-J: The petitioner has filed the instant constitutional petition with the following prayer:- 'In view of the aforementioned facts and circumstances, it is, therefore, most humbly prayed that the instant Writ Petition may kindly be allowed and Section 215 of the Election Act, 2017 be declared as ultra-vires Article(s) 17, 9, 14, 4, 5, 227, 2-A and Objective Resolution of the Constitution of the Islamic Republic of Pakistan, 1973 and in violation of the judgments of the superior courts, as referred above, hence, the same may very kindly be declared as null and void ab initio, illegal and against the basic spirit of the Constitution and any consequences, for any harsh action be declared as nullities in the eye of law.
It is further prayed that, since the Election Commission of Pakistan, being a constitutional body is not a Court or a Tribunal, hence, any power wrongly and arbitrarily assumed and illegally exercised by the same for taking away fundamental rights without due process of law as enshrined under Article 10-A, read with Articles 4&5 of the Constitution of the Islamic Republic of Pakistan, 1973, are non-est and illegal in terms of the Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973, thus, such abuse and arbitrary use of power may kindly be declared void ab initio, arbitrary and illegal.
It is further prayed that this Honourable Court may kindly declare that 'election symbol' of PTI has been arbitrarily, illegally and unlawfully withdrawn which, inter alia, is a sheer violation of fundamental rights of the petitioner available to the same under Article(s) 17 and 25 of the Constitution of the Islamic Republic of Pakistan.'
2. Facts, in precision, are as such that the Election Commission of Pakistan (ECP) issued a notice on 24th May, 2021 to Pakistan Tehreek-e-Insaf (PTI) to hold intra party elections, which was followed by a show cause notice stating that section 208 of the Election Act, 2017 mandates that intra party elections in PTI must be held and it has been five years since the last intra party election was held and ECP stipulated the consequences, mentioned in the Act, 2017, which would follow if elections were not held. PTI did not dispute that intra party elections had not been held but submitted that because of Covid-19 the time for holding intra party elections may be extended for one year. Time was granted and PTI was directed to hold intra party elections not later than 13th June, 2022 and was told that no further extension will be granted. Intra party elections were conducted by the PTI on 8th June, 2022, however, the ECP vide its order dated 13th September, 2023 held that PTI had failed to hold transparent, just and fair intra party elections and instead of invoking the provisions of Section 215(5) of the Act, 2017 and PTI was directed to hold intra party elections strictly in accordance with the prevailing party constitution, within twenty days positively, failing which it would be ineligible to obtain an election symbol for elections. PTI assailed the order before the Lahore High Court (LHC) in W.P.No.81171 of 2023 which was initially heard by a Single Judge but on PTIs request for constitution of a Full Bench it was listed for hearing before a five-member Bench together with W.P.No.332 of 2023. While both these petitions were pending adjudication before the LHC, PTI contended that it had conducted its intra-party elections on 2nd December, 2023 but it did not withdraw W.P.No.81171 of 2023. Allegedly, number of complaints were received by ECP that intra party elections were not held in PTI and the ECP issued notice to PTI, upon receipt whereof W.P.No.5791 of 2023 was filed before the Peshawar High Court (PHC) and an ad interim order was obtained against the ECP that it should not pass a final order till the determination of W.P.No.5791 of 2023. However, the said writ petition was disposed of by PHC directing the ECP to decide the matter by 22nd December, 2023. The ECP passed order dated 22nd December, 2023 and held that the PTI had not complied with the directions issued by the ECP and had failed to hold intra party elections in accordance with PTI s constitution, the Act and the Election Rules, 2017 and by invoking the provision of section 215(5) of the Act, 2017, the PTI was declared ineligible to obtain the Election Symbol. The said order of ECP was assailed before the PHC in W.P.No.6173-P/2023 which was allowed vide order dated 10th January, 2024. The two representatives of the PTI had also filed another writ petition in LHC bearing No.287 of 2024 against the above said order passed by the ECP, which was disposed of by the learned Single Judge vide order dated 3rd January, 2024 holding that the prayer sought therein could only be granted if section 215(5) of the Act was declared ultra vires the Constitution but since the same was not challenged the relief sought could not be granted. The intra-court appeal against this order was dismissed. That the order dated 10th January, 2024 passed by PHC was assailed by the ECP before the Supreme Court of Pakistan by filing C.P.No.42 of 2024, which was allowed vide judgment dated 12/13th January, 2024 and order dated 22nd December, 2023 passed by ECP was upheld. In the instant petition again the order dated 22nd December, 2023 ibid has been called into question besides the prayer that section 215 of the Act, 2017 be declared ultra vires of Article(s) 17, 9, 14, 4, 5, 227, 2-A and Objective Resolution of the Constitution of the Islamic Republic of Pakistan, 1973.
3. Learned counsel for the petitioner, while opening the arguments, contends that Election Commission of Pakistan (ECP) has no jurisdiction to challenge or question the internal appointments of officials of PTI or set aside PTI s intra party election held on 02.12.2023 and declare them void; therefore, the impugned order is not sustainable in the eye of law as the ECP is not a Court of law; that no such jurisdiction has been given onto ECP under the Constitution and the Act; therefore, such jurisdiction to interfere with intra-party affair would be contrary to the freedom of association, hence, section 215 of the Act, 2017 be declared ultra-vires of the Constitution; that the impugned order is discriminatory as no such scrutiny and investigation has been conducted against any other political party and certificates by their party heads have been accepted on face value; that the impugned order is contrary to Article(s) 4, 10-A, 17 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973, because it is for the learned Civil Courts to decide, after due evidence, in fair trial; that despite submission of party head s certificate for re-holding of intra party election, the same was rejected illegally and PTI was deprived of its symbol "BAT" and made dysfunctional arbitrarily and on the basis of illegal reason because the same did not cause any prejudice to anyone as no member of the PTI had come forward with any objections; that section 215 of the Act, 2017 as it purports to make a common symbol of a political party is dependent upon filing of a certificate in respect of intra party elections, the same is in violation of Article 17 of the Constitution; therefore, the said section is liable to be struck down; that the right to contest the election under a common symbol cannot be taken away capriciously and without any legal footing. Besides the judgment referred in the memorandum of the instant petition, the learned counsel for the petitioner further relies on WORKERS' PARTY PAKISTAN through Akhtar Hussain, Advocate, General Secretary and 6 others v. FEDERATION OF PAKISTAN and 2 others (PLD 2012 Supreme Court 681), Mian MUHAMMAD NAWAZ SHARIF v. PRESIDENT OF PAKISTAN and others (PLD 1993 Supreme Court 473) and Miss BENAZIR BHUTTO v. FEDERATION OF PAKISTAN and another (PLD 1988 Supreme Court 416).
4. On the contrary, Additional Attorney General of Pakistan has argued that the matter in hand has already been considered and determined by the Supreme Court of Pakistan while passing the judgment dated 12/13th January, 2024 in C.P.No.42 of 2024 and this Court is bound by the decision of Supreme Court as per Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
5. Learned Legal Advisor to ECP has also referred different paragraphs of the judgment dated 12/13th January, 2024 handed down by the Supreme Court of Pakistan and further argued that the same grounds have been taken in the instant petition as were agitated before the Supreme Court of Pakistan and Peshawar High Court; therefore, the instant petition is not maintainable and liable to be dismissed.
6. Additional Advocate General Punjab has also supported the arguments advanced by the Additional Attorney General for Pakistan and Legal Advisor to ECP and has prayed for dismissal of the instant petition.
7. Heard.
8. The term 'ultra vires' literally means "beyond powers" or "lack of power". It signifies a concept distinct from "illegality". In the loose or the widest sense, everything that is not warranted by law is illegal but in its proper or strict connotation "illegal" refers to that quality which makes the act itself contrary to law. It has been ascertained by way of judgment reported as, Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 2011 Lahore 120) that a law established by federal or provincial legislature has to stand the test of constitutionality.
While a law promulgated by delegated legislature, according to the legal principle, must also stand the additional test of not being uncertain, unreasonable, ultra vires of the parent statute or in conflict with any other law and it was further held that:- '24. As has been stated above, the Constitution must be interpreted as one organic complete whole and no part thereof can be read in isolation E including the fundamental rights. Thus Article 18 of the Constitution must be read in the context of the entire Constitution. There is a possibility that a fundamental right granted under one particular Article of the Constitution may read in isolation collide with or transgress upon another fundamental right also guaranteed by the Constitution. In such an eventuality the two fundamental rights must be read in a manner that each is subject to the other as has been held in the judgment reported as AIR 1978 Supreme Court 597 Smt. Maneka Gandhi v. Union of India and another in the following manner:-- "but it is sufficient to state for the present that according to this decision, which was a decision given by the full Court, the fundamental rights conferred by Part-III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom."
25. Fundamental rights do not exist in isolation nor such rights are-exercised in a vacuum. Such rights cannot must necessarily be enforced in the context not only of the fundamental rights of other individuals but also the requirements and interests of the State and society at large and need to be harmonized therewith. The honourable Supreme Court of Pakistan in the case reported as PLD 2007 SC 642 Pakistan Muslim League (N) through Khawaja Muhammad Asif M.N.A. and others v. Federation of Pakistan through Ministry of Interior and others held as follows:-- "The fundamental rights can neither be treated lightly nor interpreted in a casual or cursory manner but while interpreting Fundamental Rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals ,have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable."
Constitution is the supreme law of a country. All other statutes derive power from the constitution and are deemed subordinate to it. If any legislation over-stretches itself beyond the powers conferred upon it by the Constitution, or contravenes any constitutional provision, then such laws are considered unconstitutional or ultra vires of the Constitution.
When the Parliament makes a law, it does so in exercise of its delegated legislative powers given by the Constitution. In each case, there is a law higher in authority and the test to determine the vires is whether the subordinate law conflicts with the higher law. If it does, then it must be held as of no legal effect and validity, to be valid a law or amendment must be intra vires, reasonable in itself, certain in its terms and must not be repugnant to the General Law or Constitution. It is a settled principle of interpretation that if subordinate legislation is directly repugnant to the General purpose of the Act, which authorize it, or indeed is repugnant to any settled and well established principle of statute, it is ultra vires. The Supreme Court of Pakistan in a judgment reported as Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others (2007 PTD Supreme Court 67) held that, "To determine the Constitutional validity of an Act, its pith and substance should be considered. In other words,' where a law is impugned as ultra vires, it is the true character of the legislation that has to be ascertained. That is, it must be ascertained whether the impugned legislation is directly in respect of the subject covered by any particular Article of the Constitution or touches the said Article only incidentally or directly. If it be found that the legislation is in substance one on a matter which has been assigned to the Legislature, there can be no question of its validity even though it might incidentally infringe on matters beyond its competence." Besides, it is an established principle that Bye-laws can be struck down as ultra vires on the five main grounds:
(a) The statutory procedure prescribed for making them, has not been followed.
(b) They are repugnant to a provision of some other Statute.
(c) They must not conflict with the Parent Act itself.
(d) They are uncertain.
(e) They are unreasonable.
As stated above, unreasonableness is one of the grounds on which certain subordinate statute/rule can be declared ultra vires.
9. In the present case, the mainstay of the learned counsel for the petitioner is on the point that section 215 of the Act, 2017 is ultra-vires of the Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution ). In order to better understand the said submission both the above provisions of law are necessary to be reproduced, which read:- Article 17.
'17. Freedom of association. (1) Every citizen shall have the right to form associations or unions subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law.'
Section 215 '215. Eligibility of party to obtain election symbol.--(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, 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.
(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 and 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.'
It is not disputed that every citizen of the country has a right to form association or unions but the said formation has been subjected to some restrictions, imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. Meaning thereby the formation of association and unions will be governed by laws, enacted and promulgated, to regulate such associations and unions. In this case, the Election Act, 2017 is relevant, through which the legislature has imposed some restrictions and restraints that have to be followed by the political party(ies) and if any political party fails to comply with the provisions ordained to regulate a party, internally and externally, it has to face the consequences as have been enshrined in Section 215 of the Act, 2017. When we read the said section 215 of the Act with the words 'subject to any reasonable restrictions imposed by law' and 'public order or morality', it can safely be observed and determined that the said provision of law i.e. Section 215 of the Act, 2017 is not ultra vires of Article 17 of the Constitution, for the reasons that the same is a penal clause and comes into operation when a political party do not comply with the provisions of section 209 and 210 of the Act, 2017, because in section 209 of the Act, 2017, it has been asserted that, '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 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. (underline for emphasis). When the underlined words have been incorporated in the said provision of law, the ECP can look into the matter, especially when holding of purported intra party elections are challenged, before allocating a symbol to such political party or combination of political parties, that whether the intra-party elections have been conducted as per constitution of such party and the Act or not? and if it is found, looking into the matter summarily, that the intra-party elections have not been conducted in accordance with the constitution of party, the ECP being a constitutional institution is vested with jurisdiction to issue show cause notice and ask such party to provide evidence in respect of conducting intra party elections i.e. date, venue, list of nomination papers, etc. and if such evidence is not produced, then the ECP has to proceed with the matter as provided under section 215(5) of the Act, 2017. Therefore, it is observed that this provision of law cannot be read and considered in isolation rather the scheme of the Election Act, 2017 as a whole has to be measured and considered and when we evaluate the same in such a manner it can safely be held that the said provision of law i.e. Section 215 is not ultra vires of Articles 17, 9, 14, 4, 5, 227, 2-A and Objective Resolution of the Constitution of Islamic Republic of Pakistan, 1973.
10. Additionally, the order impugned herein i.e. 22.12.2023 passed by the ECP has already been agitated before the PHC and Supreme Court of Pakistan, which fact has not been denied by the learned counsel for the petitioner and the impugned order dated 22nd December, 2023 ibid has been upheld by the Supreme Court of Pakistan. When the position is as such, it is a settled principle of law that a party cannot simultaneously bring the same matter before two Courts. Section 10 of the Code of Civil Procedure, 1908 comes into operation in such scenario and prohibits the same.
The Supreme Court of Pakistan in judgment passed in C.P.No.42 of 2024 has held that:- 'A party cannot simultaneously agitate the same matter before two courts. Section 10 of the Code of Civil Procedure, 1908 prohibits this; it stipulates that cases 'in which the matter in issue is also directly and substantially in issue in a previously instituted' case, the court in which the subsequent case is filed shall not proceed therewith. The rule of law and judicial process would be seriously undermined if a party simultaneously agitates the same matter before two different High Courts. This may also result in conflicting decisions as happened in the present case; the Lahore High Court decided (in Writ Petition 287/2024) that unless the applicable provisions of the Elections Act are assailed, and only if they were declared unconstitutional, relief sought could be agitated, however, the Peshawar High Court completely disregarded this aspect of the case. The 1st case (Writ Petition 81171/2023) which was being heard by a five-member Bench was also left pending. The decision of Supreme Court in the case of Salahuddin Tirmizi v. Election Commission of Pakistan, by a five-member Bench, on the point of jurisdiction had held, that: '... The order passed by the Election Commission of Pakistan which functions at Islamabad in respect of the constituency of Province of N.W.F.P., would be challengeable both before the Islamabad High Court and Peshawar High Court. This concurrent jurisdiction is, however, subject to the rule of propriety according to which a High Court having jurisdiction in a matter if has exercised such jurisdiction, the other High Court which has also jurisdiction in the matter may restrain from exercising its jurisdiction. In view thereof, in the present case, the propriety demanded that subsequent order passed by Election Commission of Pakistan should have been challenged before the Islamabad High Court and the jurisdiction of Peshawar High Court should have not been invoked and the said High Court also should not, without determining the question of propriety exercise the jurisdiction.'
11. The decision of the Supreme Court of Pakistan has binding effect upon all Courts including this Court, as per Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, which reads:- '189. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.'
12. For the foregoing discussion and reasons, it is held that the petition in hand is not maintainable for the reasons that earlier on the same subject a petition was filed before the PHC and the order impugned herein has also been challenged before the Supreme Court of Pakistan. Moreover, the provision of Section 215 of the Election Act, 2017 is not ultra vires of the Articles 17, 9, 14, 4, 5, 227, 2-A and Objective Resolution of the Constitution of the Islamic Republic of Pakistan, 1973 rather the same is embedded in the Act, 2017 empowering the ECP, to exercise penal powers, when any political party fails to comply with and abide by the provisions of constitution of such party and law, regulating a party, with regards to intra-party elections, especially Sections 209 and 210 of the Act, 2017. Resultantly, the petition in hand stands dismissed.