ISLAMABAD: The Islamabad High Court (IHC) reserved its judgment in a petition challenging the Elections (Amendment) Ordinance, 2024, related to transfer a matter pending before the Election Tribunal.
A single bench of Chief Justice Aamer Farooq, on Monday, heard the petition moved by the Pakistan Tehreek-e-Insaf (PTI) leader, Shoaib Shaheen, through Barrister Sajeel Sherhyar Swati and Umair Baloch and reserved the judgment, after hearing arguments of both sides.
The petitioner challenged vires of Section 151 of the Elections Act, 2017, along with Ordinance No5 of 2024 and order dated 04.06.2024 passed by the Election Commission of Pakistan (ECP).
During the hearing, the IHC chief justice asked that the government has now included the provision of appointing retired judges as tribunal judges, so why did it exclude it before the elections?
Faisal Chaudhry advocate argued that the language used in the application related to the Election Tribunal is not acceptable; the court in its order has termed it insulting language and insulting the court is not of a person but of an institution.
Earlier, the petitioner’s counsel contended that under Section 151 of the Elections Act, 2017 (the Act), the power has been granted to the ECP to transfer a matter pending before Election Tribunal. He also contended that power is not administrative in nature but a quasi-judicial. It was contended that dispute before Election Tribunal is of the nature where allegations have been leveled against ECP and it is trite law that no one can be a judge
in his own case hence ECP ought not have the power to transfer.
The counsel submitted that in order to make scheme of law work, it would be appropriate that it should be read in Section 151 that the consultation of the chief justice of the respective High Court is mandatory before power of transfer is exercised.
Reference, in this regard, was made on Sh. Riazul Haq and another VS Federation of Pakistan through Ministry of Law and others (PLD 2013 Supreme Court 501). He further contended that in the scheme of separation of powers, independence of judiciary is highlighted and where judiciary is independent, even though, it is acting as Tribunal and it should not be undermined in any way.
He argued that likewise, through Ordinance No5 of 2024, amendment has been sought to be made in Section 140 of the Act and it is provided that in Election Tribunal, even former judge of the High Court, can be appointed without consent of the chief justice of respective High Court, which is against the spirit of independence of judiciary.
In response to the query of the Court, it was contended that no doubt, Tribunal when sits so, does not act as High Court and the matter was settled in case reported as AL-JEHAD Trust through Raeesul Mujahideen Habibul Wahabb-al-Khairi and others VS Federation of Pakistan (PLD 1996 SC 324) as well as Mian Jamal Shah VS The Member of Election Commission, Government of Pakistan, Lahore and others (PLD 1966 SC 01). It was contended that even otherwise, ECP, in its impugned order, has requisitioned the record of Election Tribunal, which it could not have done.
The bench issued notices to the respondents saying that since vires of Federal Statute is in question, hence notice under Order XXVII-A to the Attorney General for Pakistan be also issued.
In his petition, the petitioner, Shoaib, prayed to the court to declare that Section 151 of the Elections Act is ultra vires to the Constitution and the assumption of Jurisdiction by the respondent no 02 (the ECP) is unlawful, illegal, arbitrary, patently and manifestly, unconstitutional and therefore, is a nullity in the eyes of law and the whole proceedings be declared as void abs initio and set aside.
He also requested the court to declare Ordinance V of 2024, namely, the Elections (Amendment) Ordinance, 2024 may be declared ultra vires.
The ECP may be restrained from hearing application for the transfer of Tribunal filed by the respondent No 03.
Copyright Business Recorder, 2024
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