ISLAMABAD: The Supreme Court directed the Election Commission of Pakistan (ECP) to appoint the Election Tribunals for hearing of election petitions in respect of election to the National Assembly, and provincial assemblies.
A five-judge bench, headed by Chief Justice Qazi Faez Isa, on Tuesday, heard an appeal of the Commission against the Lahore High Court (LHC)’s judgment regarding the appointment of election tribunals. The bench after hearing the arguments of the ECP and respondents’ counsels reserved the judgment, which the chief justice said will be announced soon.
During the proceeding, the chief justice said: “The ECP is the constitution body and not an executive authority.” He further said it (Commission) deserves the highest respect, and do not degenerate it. He said the Court expects the Commission will act reasonably keeping in mind the number of election petition, adding they want these petitions be decided as soon as possible.
Salman Akram Raja, who represented respondent No 1 (Nasir Ali Khan), said that the Commission does not perform the judicial functions, and has no primacy on the Chief Justice of a High Court.
Justice Jamal Khan Mandokhel, a member of the bench, asked the Commission to start the process (for appointment of tribunals) from today (Tuesday). He said though there is no need of consultation to appoint high court judges as tribunals, but for in-service judges the power rests with the Chief Justice to give name/ names and they be appointed after consultation with the High Court Chief Justices.
The Elections (Amendment) Bill, 2024, empowers the ECP to appoint retired high court judges to elections tribunals without the need to consult chief justices of the relevant apex courts.
Raja contended that the LHC’s judgment is correct; therefore, the SC should not set aside it. 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. He said that the CJ of HC is competent to recommend the names and assign area of jurisdiction to the Election Tribunals.
Raja also asked the bench not to give any finding on the appointment of retired judges to the election tribunals as they have challenged it before the LHC, and it is a subjudice matter.
Sikandar Bashir, representing Election Commission, contended that the LHC’s judgment says that under Article 219 (C) of the constitution, the Commission role is “mere ministerial act to be accomplished by the executive after the entire process has culminated.” He told that the LHC’s verdict has relied upon Al-Jihad judgment for consultation with the chief justice.
The chief justice observed that Al-Jihad case relates to the appointment of judges in the judiciary, adding now (after 18th Amendment) the Al-Jihad case is on bookshelf.
The LHC on May 29 had held that under Article 219 (c) read with Article 222 (b) of the Constitution, the LHC chief justice enjoyed primacy in the appointment of election tribunals under Section 140 of the Elections Act, 2017.
According to the ECP, the interpretation of the single judge does not accord with Articles 219 (c), 222 (d) and its proviso, 225 of the Constitution and sections 140(1) and (3) and 151 of the Elections Act.
The apex court in June had suspended the LHC’s notification of constituting eight election tribunals in Punjab as well as the LHC’s determination that its chief justice has the final say in the appointment of tribunals to settle poll disputes.
Copyright Business Recorder, 2024
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