ISLAMABAD: In a unanimous verdict, the Supreme Court (SC) on Monday set aside judgment of Lahore High Court (LHC) regarding the formation of Election Tribunals in Punjab for hearing 2024 election cases.
A five-member larger bench of the apex court headed by Chief Justice Qazi Faez Isa announced the reserved verdict on the appeal filed by Election Commission of Pakistan (ECP) Other members of the bench included Justice Amin-ud-Din Khan Justice Jamal Khan Mandokhail Justice Naeem Akhtar Afghan Justice Aqeel Ahmed Abbasi.
The unanimous decision after accepting the appeal of the Election Commission of Pakistan (ECP) set aside the judgment of Lahore High Court dated May 29, 2024 and also the notification dated 12 June 2024 issued pursuant thereto.
Justice Jamal Khan Mandokhel concurred with the findings rendered and conclusion drawn by the unanimous verdict but gave his additional opinion and reasoning to the points in the issue involved in these appeals. Similarly, Justice Aqeel Ahmed Abbassi endorsed the opinion of Justice Jamal Khan Mandokhel.
The court on September 24 had reserved the judgment after the counsel for the Election Commission of Pakistan had informed that meeting and meaningful consultation took place with the Chief Justice of the Lahore High Court and a consensus emerged.
The Election Commission of Pakistan had challenged in the apex court the judgment dated May 29, 2024 of the Lahore High Court passed in two writ petitions filed by two individuals who respectively are respondent No 1 in each appeal.
The writ petitions had challenged the authority of the ECP to appoint Election Tribunals and contended that the Chief Justice of the Lahore High Court has primacy in the consultation process.
The learned single Judge interpreted the Constitution and the Elections Act, 2017 (‘the Elections Act’) with reference to the decisions in the cases of AlJehad Trust v Federation of Pakistan (PLD 1996 Supreme Court 324) and Riaz-ul-Haq v Federation of Pakistan (PLD 2013 Supreme Court 501) and held that the Election Tribunals are to be appointed on the recommendation of the Chief Justice of the Lahore High Court
The eight-page unanimous verdict, authored by Chief Justice Qazi Faez Isa held that since the matter has been amicably resolved there is no need to decide these cases. “We want to record our appreciation that the Chief Justice of the Lahore High Court, who holds an important constitutional office, and the ECP, which is a constitutional body, have amicably settled the matter, undoubtedly, they realised their respective constitutional and legal responsibilities and rose to the occasion to do the needful”, the court held.
The court further noted that they have also received ‘Report’ dated 18 July 2024 (which has been numbered as CMA No. 8039/2024) from the Registrar which confirms that the matter was amicably resolved between the Chief Justice of the Lahore High Court and the ECP.
“And, we are informed that sufficient number of Election Tribunals will be appointed/constituted immediately”, says the judgment. The unanimous judgment further held that the ECP is a constitutional body and the Chief Justice is a constitutional office holder with the ruling that both are deserving of the highest respect.
“Therefore, we had expressed our confidence that if there had been a face to face meeting and a meaningful consultation ensued the matter could have been amicably resolved”, says the judgment adding that the learned Attorney-General for Pakistan agreed and stated that consultation should be meaningful.
Therefore, without adverting to the merits of the case we had directed the ECP/Chief Election Commissioner to meet with the Chief Justice of the Lahore High Court, in an atmosphere of meaningful consultation with regard to the subject matter”, the court held.
The court noted that with a view to enabling this the ECP’s letter dated 26 April 2024, ECP’s notification dated 26 April 2024, the Registrar’s undated letter No. 06/RHC, the impugned judgment dated 29 May 2024 and the Lahore High Court’s Notification dated 12 June 2014 were suspended.
It was further observed that the said meeting should be held in the office of Chief Justice of the Lahore High Court in deference to such office”, says the judgment. If the learned Judge whose judgment is impugned herein had realised that a face-to-face meeting had not taken place by the ECP/Chief Election Commissioner with the Chief Justice we are sure he would not have passed the impugned judgment”, says the unanimous verdict
Moreover, the court noted whenever a party to a dispute/disagreement is a constitutional body or constitutional office holder a cautious approach should be adopted and it must be ensured that adjudication is resorted to as a last resort and when necessitated.
The court held that people, who we all eventually serve, expect nothing less. “Therefore, since the matter has been amicably resolved to the satisfaction of the Hon’ble Chief Justice of the Lahore High Court and the ECP adjudication was not called for, resultantly, the impugned judgment is set aside and also the notification dated 12 June 2024 issued pursuant thereto”, says the judgment
“Moreover, though we do not expect, however, since such a dispute may one day have to be adjudicated upon we hold that anything stated in the impugned judgment should not be referred to before any court”, the court held.
Meanwhile, in his additional opinion, Justice Jamal Khan Mandokhel held that according to Article 219 of the Constitution, the Commission is exclusively charged with a duty to appoint as many Election Tribunals (‘Tribunal’) as may be necessary for swift disposal of elections petitions.
The judge held 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 and 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”, Justice Mandokhled held .
The judge further held that the purpose of consultation is because of the realization 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.
Justice Mandokhel noted that 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, Justice Jamal Khan Mandokhel held that the determination of territorial jurisdiction can also be resolved suitably adding that 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 judge held
Referring to the procedure for appointment, Justice Mandokhel 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 (‘the Act’)”, the judge noted
Justice Mandokhel further held that 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 judge noted that 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 judge held adding that the primacy, therefore, lies in the final opinion of the Chief Justice.
Even otherwise, the Commission is a constitutional body and the Chief Justice and Judges are holding constitutional posts”, the judge noted and expected that members of both the institutions must respect each other and in case of any issue, they are supposed to have a meaningful consultation as has been provided by the Act.
In the case in hand, the judge noted that earlier, there was no meeting between the two institutions, therefore, there was no proper consultation, which has resulted into litigation. “I hope 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”, Justice Mandokhel concluded.