The bench comprising Chief Justice Qazi Faez Isa and Justice Naeem Akhtar Afghan conducted the first hearing on the ECP’s appeal against the decision of the single-bench of the Lahore High Court (LHC) about the eight election tribunals in Punjab.
The LHC had ruled on May 29 that under Article 219(C) read with Article 222(B) of the Constitution the chief justice had the pre-eminence in the appointment of the election tribunals under Section 140 of the Elections Act 2017.
The ECP challenged the LHC decision seeking the apex court’s ruling to determine whether the ECP or the LHC had the final say in the appointment of tribunals which are meant to hear the challenges to the election results.
At the outset of the hearing, ECP lawyer Sikandar Bashir Mohmand requested the bench to constitute a larger bench on the matter stating that the LHC single bench’s decision was not by the Constitution and the law because the Constitution empowered the ECP to establish tribunals.
According to the court order Salman Akram Raja – one of the two petitioners in the LHC – told the bench that there should have been an intra-court appeal on the matter. He also requested that the matter be placed before the Practice and Procedure Committee for the formation of a larger bench.
Raja also said that the ECP was a constitutional body but it could not exercise judicial powers without consulting the LHC chief justice. However, the ECP lawyer stated that the writ petition filed in the LHC was inadmissible because it was an administrative matter between the ECP and the LHC.
Giving the background and a timeline about the formation of tribunals Mohmand stated that since 1977 the ECP had been establishing the election tribunals. He added that the current case pertained to the interpretation of Article 219(C) of the Constitution.
He further informed the bench that the ECP wrote a letter to all the high courts on February 14 – nearly a week after the general elections – for the formation of tribunals and sought names of the judges. In Punjab, he added the LHC provided the names of two judges on February 20.
Mohmand stated that both the judges were notified for election tribunals. Later on April 26, two more judges were provided for tribunals adding that there was no dispute regarding the formation of the four tribunals.
The court was also informed that except for the LHC, there was no dispute on the formation of election tribunals in other high courts. The bench accepted the pleas to send the matter to the Practice and Procedure Committee which would meet next week.
At one point during the hearing, Chief Justice Isa asked a question as to why the chief election commissioner (CEC) and the LHC chief justice did not meet to sort out the matter. Was it necessary to make everything controversial he questioned.
The chief justice stated that every issue could be resolved by meeting each other. Had the chief justice and the CEC sat down there would have been a solution to the issue, he said. Mohmand replied that the ECP was ready for a meaningful consultation with the chief justice.
Justice Afghan remarked that the ECP wrote letters to all the high courts and there was no dispute on this issue. He remarked that as the Balochistan High Court chief justice, he [Justice Afghan] had clearly said that the authority to establish tribunals belonged to the ECP.
Also during the hearing, a lawyer used the word honorable for the high court. On that, the chief justice stopped him and said there were the honorable judges. He asked the lawyer why he was not calling the ECP honorable.
In Article 219(C)
The chief justice said that Article 219(C) of the Constitution made it very clear that the ECP had the power to form the election tribunals. He added that the judges had taken oath to uphold the Constitution and the law.
The chief justice also gave observations about the issuance of a presidential ordinance regarding the appointment of retired judges as tribunal heads. He said that issuing a presidential ordinance was an insult to parliament. He wondered how an ordinance could be brought after parliament had enacted the law.
Was there any emergency what was the reason for issuing the ordinance the chief justice asked. This was also interference in the elections he continued. He said that through the ordinance a high court decision was negated. Mohmand said that the Constitution allowed the promulgation of ordinances.
During the hearing, the bench was informed that the LHC had the sanctioned strength of 60 judges but at present only 40 judges were working. Chief Justice Isa remarked that he would be responsible if the posts of judges were vacant in the Supreme Court.
He added that Salman Akram Raja did not bring the application regarding the appointment of judges. Chief Justice Isa further said that after the issuance of the notification, LHC Chief Justice Shahzad Malik was expected to take oath as a judge of the Supreme Court on Monday.
When the ECP lawyer requested the court to suspend the LHC decision to have a meaningful consultation with the LHC chief justice Chief Justice Isa said that the ECP was a constitutional institution and the court would not stop it from consulting.
He made it clear that the Supreme Court’s decisions were applied to the entire country, therefore, the bench would look at the matter by staying above provinces. He added that if the LHC decision was upheld the tribunals in all other high courts would be quashed.
Justice Afghan said the establishment of the election tribunals would be subjected to the final Supreme Court decision. The bench accepted Niazullah Niazi’s request for making nine parties to the case.
The court sought a complete record of the correspondence between the four provincial high courts and the Election Commission on the issue of setting up election tribunals and referred the matter to the Practice and Procedure Committee for forming a larger bench.