Election Tribunals in Punjab: SC rejects ECP’s plea seeking suspension of LHC’s order

ISLAMABAD: The Supreme Court turned down the Election Commission of Pakistan (ECP)’s request to suspend the Lahore High Court (LHC)’s order regarding the appointment of Election Tribunals in the Punjab.

The Court, however, referred the matter to the Committee, set up in terms of the SC Practice and Procedure Act, 2023, as the matter involves the interpretation of provisions of the constitution and Election Act, 2017.

A two-member bench, comprising Chief Justice Qazi Faez Isa and Justice Naeem Akhtar Afghan, on Thursday, heard an appeal of the Commission against the LHC’s order regarding the appointment of election tribunals. It issued notice to the Attorney General for Pakistan under Order XXVII of SC Rules to assist the Court and arrayed Salman Akram Raja and others as party in the matter.

During the proceedings, Justice Naeem noted that in Khyber-Pakhtunkhwa, Balochistan, and Sindh, the notifications for establishing Tribunals were issued by the Election Commission but only in the Punjab the notification was issued by the LHC. Therefore, the ECP was directed to file relevant correspondence and response of the chief justices of all the high courts and notifications issued with regard to Election Tribunals in other provinces.

CJP Faez said “if they appreciate the LHC’s power to issue the notification for Tribunals then it would affect Tribunals in other provinces, and will have ramifications.” The chief justice said after the announcement of the election date when he went abroad the LHC had granted stay to hold elections on February 8. He hinted that the incumbent CJ LHC Malik Shehzad Ahmed might take oath as judge of the Supreme Court on Monday (June 24).

Sikandar Bashir Mohmand representing the ECP stated that two petitions have been filed for leave to appeal against a common judgment dated 29-05-2024 passed by a single judge of the LHC in writ petitions filed by advocate Salman Akram Raja (Respondent No1) and Umer Hashim Khan, wherein, identical prayers were made. The main prayer made was to who has the power to appoint the Election Tribunal, and whether the chief justice of the LHC has primacy in the consultation process.

The ECP’s lawyer stated that a single judge of LHC interpreted the provisions of the constitution and the law in view of the Supreme Court judgments in Al-Jihad and Riazul Haq cases. The LHC judge held that the Election Tribunals are to be appointed by the CJ LHC.

Sikandar submitted that the interpretation does not accord with Articles 219(c), 222 (d) and its proviso and Article 225 of the Constitution and Section 140(1)(3), and 151 of the Election Act, 2017. He stated that the constitution grants power to the Election Commission to appoint Tribunals, whereas, such power has to be exercised in consultation with the chief justice of the high court.

The Commission’s counsel contended that Al-Jihad is completely distinguishable and not applicable to the appointment of the Tribunal, adding “this judgment is for the appointment of the judges in the superior judiciary, prior to the 18th Amendment.”

It is further submitted that writ petitions were not maintainable; therefore, requested the bench to suspend the LHCsingle judge’s order.

Salman Akram Raja told the bench that he would argue the case himself, while Umer Hashim adopted the submission of Salman, adding that his counsel is abroad, but will appear on the next date.

Salman argued that the writ petitions filed in the High Court were maintainable because sufficient Election Tribunals had not been appointed; only two were appointed and that too belatedly, and the Commission had not complied with its constitutional and legal duty. He further states that the Commission, though a constitutional body, is not a judicial body empowered to appoint Election Tribunals and that judicial power vests in the High Court, which, therefore, required meaningful consultation with the chief justice of the LHC, but when this was not done, both the petitioners (respondents No 1 herein) who had contested elections, were aggrieved parties.

Salman further stated that the Election Commission should have filed the intra-court appeal (ICA) under the Law Reform Ordinance, instead of filing a petition directly before the Supreme Court. He also stated that the matter requires interpretation therefore it should be referred to the Committee set up in terms of Section 4 of the Supreme Court (Practice and Procedure) Act, 2023.

The ECP’s counsel stated that he has already raised objections to the writ petitions filed by respondent no 1 and others as they are not a necessary party, and the matter pertains to the powers of the ECP and the consultation with the CJ LHC.

This is purely a legal and constitutional matter, he added.

Copyright Business Recorder, 2024