ISLAMABAD: The Senate Thursday passed a bill to empower the Election Commission of Pakistan (ECP) to appoint retired judges of high courts as election tribunals amid chants of shame, shame by the opposition legislators who later also staged a walkout from the house.
Under the amendment to the Elections Act, 2017, the ECP would not need consultation with the respective chief justices for the appointment of retired judges as election tribunals.
The Pakistan Tehreek-e-Insaf (PTI) members tore copies of the bill and threw them up while terming the legislation as a conspiracy against the electoral process. As the chair put the bill to vote after some speeches by the opposition and treasury members, the opposition staged an undeclared walkout from the house over the decision to restore the original provision of the Act. Leader of the Opposition in the House Shibli Faraz slammed the government. The amendment was part of the orders of the day, even before Law Minister Azam Nazir Tarar moved a motion seeking immediate consideration of the Elections (Amendment) Bill, 2024, without referring it to the house committee concerned.
The leader of the opposition recalled that during the PMLN tenure on August 5, an amendment to Section 140 of the Elections Act was allowed, providing for the appointment of serving high court judges as election tribunals, He questioned what compelled the government to reverse its amendment in less than a year. Shibli warned that this ‘legislative seesaw’ would make the concept of legislation lose its significance and dignity and alleged that the bill was meant to prevent the truth from coming out by managing the tribunals.
He came down hard on the ECP for the conduct of, what he called, the most controversial elections of the country and said still the ECP had the ‘guts’ to find faults with the intra-party elections of PTI conducted in 2023 and 2024. “People gave an overwhelming mandate to the PTI even after denial of poll symbol and the mass hunt for its nominated candidates. And, now when a number of poll petitions are pending before tribunals, the timing of legislation explains and exposes the purpose behind it,” he contended.
Shibli charged that the strategy of legislation for political interests was a matter of deep concern, alleging this all was being done as the independent tribunals did not suit their (rulers) political interests.
Responding to the opposition leader, Law Minister Azam Nazir Tarar said, “The only law acceptable them is the one that suits them. We still remember how 53 laws were passed in just 45 minutes in the joint sitting during the PTI government. If that was not bulldozing, then what else was it.” He explained that the amendment was the key to fast-track decisions on plethora of election petitions. Qasim Suri remained the NA deputy speaker on stay order for five years.” Tarar also alleged that those who imposed RTS ‘conquered’ democracy and stole the election mandate in 2018 were today lecturing them on democracy while they had stolen the Daska election. He moved a motion seeking immediate consideration of the bill, which was carried by the house amidst uproar and slogans of ‘shame, shame’ and ‘no, no’ by the opposition members.
Earlier, PTI’s Ali Zafar strongly opposed the bill and alleged it was based on mala fide intention and the government wanted to bulldoze it. He contended that the bill was against the Constitution and its spirit as well as against the judiciary’s independence. He believed it would, if passed without being sent to the house standing committee, would threaten the electoral process and be tantamount to murder of democracy.
Ex-chairman Senate and PPP’s Farooq H Naek rose to point out that Clause C of Article 219 of the Constitution mentioned that the power to appoint the election tribunals lay completely with the ECP. He continued that the high court judges just could not appoint themselves as election tribunals. “It is said that no one is the judge in his own cause. And, it will be also negation of Article 219 as well as that of the code of conduct of the superior court judges,” he added.
Referring to Article 222 of the Constitution, he also said that it was the exclusive right of ECP to conduct elections and deal with election dispute petitions, decisions of doubts and disputes arising out of election petitions. He urged the PTI to lend support to the bill for speedy decision of poll petitions, as the sitting judges were already overburdened with routine work. He explained the ground reality was that the retired judges appointed as election tribunals in the 2013 elections decided some 80 per cent of the petitions. Contrary to this, from 2018 to 2024, very few election petitions were decided when the law was enacted to appoint sitting judges as election tribunals as they were overburdened.
JUI-Fazl’s Kamran Murtaza argued that the issue at hand was whether or not the government was legitimate. “And our stance is that those sitting in the government are not chosen representatives,” he said. He also noted that the government wanted to get passed a legislation without sending it to the committee or holding a debate on it. He contended that a retired judge, unlike a sitting judge, would not be answerable to anyone.
Separately, the Supreme Court suspended a judgment of the Lahore High Court (LHC) and its notification regarding the appointment of eight election tribunals in Punjab for hearing election dispute cases. A five-member SC bench, headed by Chief Justice Qazi Faez Isa, heard the appeal of ECP against the LHC judgment. Other members of the bench included Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Naeem Akhtar Afghan and Justice Aqeel Ahmed Abbasi. The court suspended the LHC judgment till the completion of consultation between the LHC chief justice and ECP.
The court also suspended all correspondence made by the ECP with the LHC registrar for the appointment of election tribunals with the ruling that as meaningful consultation did not take place, they were directing both the ECP and new chief justice of Lahore High Court to resolve the matter amicably through consultation. The court noted in its order had there been a meeting between the ECP and LHC chief justice, the matter might have been resolved.
The court also rejected objections raised by Niazullah Khan Niazi on Chief Justice Qazi Faez Isa for being a part of the bench. The counsel is representing some nine MNAs and MPAs of PTI, including Shaukat Basra, who had earlier become party to the instant case. Niazi submitted that his clients were of the view that the chief justice should not be a part of the bench. “We have heard you, so sit down please,” the CJP asked Niazi.
However, when Niazi tried to speak again, the CJP again told him to sit down and said such concerns should have been raised on the very first proceeding of the case, instead of scandalising the court now. “Perpetual scandalising of the court would not be tolerated,” the CJP remarked, asking whether the court should not report the counsel’s behaviour to the Pakistan Bar Council for cancelling his licence. The CJP asked Salman Akram Raja, counsel for the PTI, whether he had any objection over the bench, to which he replied in negative. “Are we sitting here to be ridiculed?” Justice Jamal Khan Mandokhel asked and further inquired as to why he was objecting to the bench.
The CJP observed that such objections were being raised to make headlines, adding that the process of defaming the institutions must be stopped now. “Gone are the days when an individual was empowered to decide about the constitution of benches for hearing cases,” the CJP remarked, adding that now the power was exercised by a three-member committee.
Niazullah Niazi contended that Imran Khan, presently lodged in Adiala jail, had also objected that his electoral symbol was taken away. At this, the CJP said the court had provided him a video-link facility to participate in proceedings from jail, and no objections were raised by him at that time. The CJP continued that Ali Zafar did not raise any objections in the intra-party election case either. He further said the matter was between the Election Commission and chief justice. “Why is a private person so much interested in the matter?” he asked. Justice Jamal Khan said if the ECP and CJP did not make a decision, then the common man would be affected.
Attorney General Mansoor Usman Awan told the court that the Senate was meeting regarding the amendment to the Elections Act, on which the CJP said whether the Senate approves the bill or not, “you should provide us details”. The court asked ECP counsel Sikandar Bashir Mohmand how many tribunals were required. The counsel replied that they needed nine judges. Justice Jamal Khan Mandokhel said “you can find the names from Lahore High Court website”. The ECP counsel submitted that they have no objection to consultation, but there should be a difference between dictation and consultation. There should be balance. “What is your objection to consultation with chief justice of Lahore High Court?” the CJP asked, adding that he should consult with the CJ.
Justice Mandokhel said, “If you ask a chief justice to send such and such judges, it is also not a good thing. You should just ask the CJ for his name.” The ECP counsel said the chief election commissioner (CEC) had written a letter to the LHC registrar, “but we have not received any response from them yet”. He submitted that the CEC had written a letter on June 27, to which the CJP said at that time there was an acting chief justice of the LHC, now the Judicial Commission had recommended the appointment of a permanent chief justice to the LHC.
Salman Akram Raja argued that the ECP should explain the reason for rejecting the names sent by the LHC, adding that there were 180 election dispute appeals in Punjab. Justice Jamal Khan Mandokhel said the high court had no authority to notify, but it could give notice of contempt of court. The ECP counsel submitted that they were going towards consultation, but the decision of the high court should be suspended for a meaningful consultation.
Meanwhile, the court declared that after the oath of LHC chief justice, CEC and LHC should consult meaningfully. The court noted that the election tribunals would be established transparently for adjudication of election disputes matters. Later the court adjourned the hearing for date-in-office (an indefinite period).