ISLAMABAD: The Supreme Court set aside the Lahore High Court (LHC)’s judgment and the notification issued by it for constitution of Election Tribunals in the Punjab for disposal of the petitions regarding general elections 2024.

A five-judge bench, headed by Chief Justice Qazi Faez Isa, on Monday, announced the judgment which it had reserved on September 24.

The judgment said; “Since the matter has been amicably resolved to the satisfaction of the Chief Justice of the Lahore High Court and the Election Commission of Pakistan (ECP) adjudication was not called for, resultantly, the impugned judgment is set aside and also the notification dated 12 June 2024 issued pursuant thereto.”

A single bench of the LHC on May 29 held that under Article 219(c) read with Article 222(b) of the Constitution, the Chief Justice of the High Court enjoyed primacy in the appointment of election tribunals under Section 140 of the Elections Act, 2017.

Justice Jamal Khan Mandokhail wrote an additional note. He hoped that now the Commission will take all necessary steps immediately, enabling the Tribunals to start functioning and to conclude the proceedings upon the petitions within the stipulated period of time, accordingly.

He observed that the ECP is constituted under Article 213 of the Constitution and under sub-paragraph of the said Article; the Commission shall have such powers and functions as are conferred on it by the Constitution and law.

Under Article 218(3) of the Constitution, it is the duty of the Commission to organize and conduct the election and to make arrangements as necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. According to Article 219 of the Constitution, the Commission is exclusively charged with a duty to appoint as many Election Tribunals as may be necessary for swift disposal of elections petitions.

He noted that the Constitution does not provide the procedure, qualification and manner of appointment of Tribunal; however, Article 213(3) of the Constitution provides that the Commission shall have powers and functions as are conferred on it by the Constitution and law. To regulate the power and function of the Commission with regard to appointment of Tribunal, procedure has been provided by Section 140 of the Elections Act, 2017.

Justice Jamal wrote that no doubt, the power to appoint Tribunals rests only with the Commission, but in order to ensure free and fair election, an independent machinery is necessary. In such view of the matter, the power to adjudicate such delicate task has been assigned to the judiciary. Therefore, in case of appointing a sitting Judge of a High Court, consultation with the Chief Justice of the High Court concerned by the Commission is a condition precedent.

The purpose of consultation is because of the realisation that the Chief Justice is not only the administrative head of the High Court but also is in best position to know and assess the suitability and availability of the judges.

As several judges are performing their functions in different Benches, therefore, while nominating Judges, it will be convenient for the Chief Justice to consider availability of Judges at relevant Benches. In this way, the determination of territorial jurisdiction can also be resolved suitably.

Once the Chief Justice nominates Judges for the purpose of appointment as Tribunals, the Commission is bound to accept the names and notify them accordingly, unless, there are cogent reasons, which must be communicated to the Chief Justice. If the Chief Justice is satisfied with the reasons advanced by the Commission, he may substitute a Judge accordingly.

The Constitution and Section 140 of the Act do not provide for any provision, enabling the Commission to request for a panel of Judges for the purpose of appointment as Tribunals.

The intention of the Legislature is evident of the fact that they did not assign power to the Commission to ask for a panel of Judges and pick and choose a Judge of its own choice amongst them. The Commission must have a faith in every Judge and can only ask a Judge against each Tribunal. The primacy, therefore, lies in the final opinion of the Chief Justice.

Copyright Business Recorder, 2024