The Supreme Court on Thursday suspended a Lahore High Court (LHC) ruling establishing additional election tribunals in Punjab, as well as a notification of the Election Commission of Pakistan (ECP) notifying only two of six judges nominated to hear the pending cases.
A five-member bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justices Aminud Din Khan, Jamal Khan Mandokhail, Naeem Akhtar Afghan, and Aqeel Ahmed Abbasi announced the decision on an ECP plea against a LHC ruling constituting eight election tribunals to hear challenges to poll results in various constituencies of the National and Punjab Assembly.
The electoral body had moved the apex court under Article 185(3) of the Constitution with the plea that Article 219, read with Article 222(b), confers upon it the sole authority to appoint election tribunals and this authority could not be exercised by the high court. The plea had further maintained Article 219 did not require any consultation between the ECP and the chief justice of a high court for the appointment of election tribunals or for allocating territorial jurisdiction to them.
At the outset of the hearing, Niazullah Niazi took the rostrum and claimed the PTI had expressed no-confidence in the CJP and urged him to step aside from the bench hearing the case. The judges took great exception to this demand, with the CJP lamenting ongoing attempts to “malign” the judiciary. Justice Mandokhail, similarly, said seeking recusal of a judge after the formation of a larger bench was akin to insulting the sitting judges. The bench then set aside the plea after confirming with PTI lawyer Salman Akram Raja that he had no issues with the CJP continuing to hear the case.
As the ECP proceeded with its arguments, Justice Mandokhail remarked the electoral body did not have the authority to dictate to the LHC CJ which judges could be appointed to head tribunals. “You [ECP] cannot choose between judges,” he said, adding if he were in the LHC CJ’s position, he might have taken the same steps.
The CJP, meanwhile, observed that the LHC CJ was the only one who could decide on the availability of judges for election tribunals. However, he added, it was unfortunate that this issue arose, as it could have been resolved through dialogue.
Dictating the order of the court, the CJP lamented the lack of communication between the ECP and the LHC, noting the ECP’s notification of just two judges of the six nominated by the LHC CJ was “insufficient.” Announcing that the case would remain pending before the Supreme Court until consultations between the ECP and the new LHC chief justice, the court directed both constitutional bodies to consult each other.
The case was then adjourned indefinitely.
Case history
In February, after the elections, the ECP had sought a panel of serving judges from the LHC to head election tribunals. The LHC CJ initially only nominated two judges; two months later, he nominated another six. Of the latter six, the ECP only notified two and sought additional names for appointment to Rawalpindi and Bahawalpur election tribunals.
The LHC CJ denied this request and directed the high court registrar to inform the ECP to notify the election tribunals from the judges already nominated by the CJ. Refusing this demand, the electoral body said accepting the LHC CJ’s appointment without meaningful consultations infringed on its authority and violated Section 140(3) of the Elections Act.
Then-LHC CJ Malik Shahzad Ahmad then constituted eight election tribunals to hear cases related to the polls, with the ECP challenging the decision in the apex court as a violation of the Constitution.