LAHORE: All three judges of the Lahore High Court (LHC) full bench that dismissed, with a majority decision, the petitions against the candidature of the PML-N’s Kulsoom Nawaz had a unanimous view that the returning officer (RO) of NA-120 had failed to perform his duty diligently required under the Representation of People Act (RoPA), 1976.
Justice Aminuddin Khan and Justice Shahid Jamil Khan had on Wednesday dismissed the petitions while Justice Ibadur Rehman Lodhi dissented from the majority view and accepted the petitions. However, decision with majority view has to be prevailed. The detailed verdict was released on Friday.
The PPP’s candidate Faisal Mir, Pakistan Awami Tehreek’s Ishtiaq Ahmad Chaudhry advocate and Milli Muslim League’s Nabeel Shahzad had filed the petitions against decisions of returning officer and an election tribunal whereby nomination papers of Kulsoom Nawaz were accepted.
The majority decision says: “In our view the Returning Officer was bound under the law to decide the objections by the objectors in accordance with sub-section 2 of section 14 of the Representation of People Act (RoPA), 1976.”
It said no material was produced before the RO to substantiate the objection, despite that ‘we are of the view that the Returning Officer was bound to decide the objections’, the majority judges said.
Dismissing the petitions, the judges have also relied on a Supreme Court’s 1994 judgment wherein only exception has been given for entertaining a petition by a high court in case anyone is being disfranchised and no legal remedy is available to any aggrieved party during the process of election or after its completion.
“The cases in hand are against the acceptance of nomination papers and no one is going to be disfranchised. In this view of the matter, all above three petitions being not competent in the light of the judgments of august Supreme Court of Pakistan referred supra stand dismissed with majority view,” the ruling said.
However, the judges observed that the petitioners had a right to file post-election petition under RoPA before appropriate tribunal and they could raise all the objections against the acceptance of nomination papers and non-decision or rejection of their objections. The judges maintained that no material had been produced by the petitioners and even no specific defect for rejection of the nomination papers had been pleaded.
In his dissenting note, Justice Lodhi said: “The Returning Officer has completely failed to perform his function in accordance with law and he has arbitrarily proceeded to accept the nomination papers of the candidate without giving any reasons and without disposal of the objections raised by the petitioners”.
He said the election tribunal also failed to take into consideration the arbitrariness in the conduct of RO when he violated the requirements of Article 218(3) of the Constitution and Section 14 of the RoPA. The dissenting judge set aside the impugned decisions of the RO and the tribunal having no legal effect.
If the decision of Justice Lodhi was to be implemented, the objections of the petitions against Kulsoom Nawaz’s candidature would have deemed to be pending before the RO who would have conducted the scrutiny strictly within the meaning of section 14 of RoPA and schedule of the by-election would have been suspended from the stage of scrutiny process and the ECP would have issued a fresh schedule for fresh scrutiny process and subsequent activities, including the polling.
Published in Dawn, September 16th, 2017
