• Apex court opens its doors after working hours, live-streams proceedings as ECP boss seeks halt to stay order on appointment of poll staff
• SC regrets LHC judge acted in ‘haste’; questions ‘bona fide’ nature of PTI’s plea, hints at contempt action against lawyer who petitioned high court

ISLAMABAD: A visibly disturbed Supreme Court bench suspended the Dec 13 Lahore High Court (LHC) order staying the appointment of district ret­urning officers (DROs), returning officers (ROs) and assistant returning officers (AROs) from the executive, and ordered the Election Comm­ission of Pakistan (ECP) to notify a schedule for the Feb 8, 2024 general elections by Friday night.

“Accordingly in the given circumstances and considering the constitutional and legal stipulation, the judgement of the LHC is hereby suspended,” said an order dictated by Chief Justice of Pakistan (CJP) Qazi Faez Isa.

 Text by Iftikhar A. Khan / Design by Irfan Khan
Text by Iftikhar A. Khan / Design by Irfan Khan

Other members of the three-member bench were Justice Sardar Tariq Masood and Justice Syed Mansoor Ali Shah. Senior counsel Sajeel Shah­ar­yar Swati represented the ECP.

Though Justice Ijaz-ul-Ahsan attended the meeting of the committee constituted under the Supreme Court (Practice and Procedure) Act 2023 and approved the formation of the bench, he himself chose not to sit on it due to personal commitments.

The Supreme Court had taken up a hurriedly-moved appeal by the ECP assailing the LHC’s order soon after a meeting was held between Chief Election Commissioner Sikander Sultan Raja, CJP Isa, Justice Masood, Justice Ijaz-ul-Ahsan and Attorney General for Pakistan (AGP) Mansoor Usman Awan.

The meeting was held against the backdrop of Thursday’s ECP decision to halt a seven-day session to train the DROs, ROs and AROs on how to conduct the upcoming elections.

Journalists deputed to cover the court proceedings rushed helter-skelter to reach the Supreme Court when reports about a possible hearing by the top court in the evening began circulating.

Since the CJP was leaving on a two-week vacation, and the timeframe within which the ECP was supposed to notify the election schedule had passed, an urgent hearing of the matter was deemed necessary.

The Supreme Court also issued notice to PTI’s additional secretary general Umair Niazi, who had approached the LHC, requiring him to explain why action should not be initiated against him under the Contempt of Court Ordinance 2003 read with Article 204 of the Constitution for disregarding the SC’s Nov 3 judgement under which it was decided by the president and ECP to hold the elections on Feb 8.

Mr Niazi had served as additional advocate general during the PTI government.

The top court regretted that the LHC judge, who suspended the appointment of DROs, ROs and AROs, had acted in haste disregarding the fact that all the chief justices of high courts had refused to lend judicial officers for the conduct of elections.

The order noted that the ECP had undertaken to issue the election programme “positively by Friday night” and that its notification of suspending the training course of the election staff would also be withdrawn.

Issuing notice to the individual who had had filed the petition before the LHC, the court wondered whether an individual could hold the entire country at ransom.

The SC observed it seems that the political party on whose petition the top court had ordered holding the polls on Feb 8 was not inclined to see the elections through.

“I don’t know, is this petition bona fide?” the CJP regretted.

CJP Isa expressed his dismay over the passing of the order by the high court judge, saying he was surprised that such orders are being issued.

“Does it constitute misconduct on part of the high court judge for ignoring even the earlier direction of the Supreme Court?”

The CJP noted that the LHC judge had passed the order for the whole of Pakistan, beyond his territorial jurisdiction and without referring to the Supreme Court’s judgement.

The CJP said the high court judge had to stay within the confines of the Constitution, “especially when his own CJ says that he cannot spare judicial officers since it will adversely affect the working of the lower judiciary already facing a pendency of 1.3 million cases”.

‘Unconstitutional sections’

The Supreme Court was also surprised that the petition before the high court had challenged Sections 50 and 51(1) of the Elections Act 2017 for being unconstitutional and void. Section 50 deals with the appointment of DROs and Section 51(1) with the appointment of ROs and AROs.

The ECP counsel contended that these provisions existed during the last elections and till date no one had ever taken any exception to it.

Sajeel Swati explained that to ensure that elections are held on Feb 8, a certain number of days are required, but if the high court’s orders remained in the field, it may not permit the ECP to conduct the elections within the stipulated timeframe.

He stated that ECP had drafted the election schedule and wanted to announce it on Friday, had the high court’s order not come in the way.

The Supreme Court also noted inherent contradictions in the high court judge’s decision in which he had ordered placing the matter before the LHC’s chief justice for the constitution of a larger bench, but then suspended the ECP notification of appointing the election staff unilaterally.

The court regretted that in his order, the LHC judge had also disregarded Article 199 of the Constitution, as well as the remedy available to raise a grievance against the appointment of any election staff under Section 55(3) of the Elections Act.

Without availing the adequate remedy, the petitioner also approached the LHC directly when the petitioner, who claimed to be a barrister, should be well conversant with the law and the Nov 3 judgement in which the Supreme Court had observed that: “No one should be allowed on any pretext to derail democracy.”

The SC regretted that the high court had suspended the ECP notifications in which the commission had even appointed its own officers for election duty and another three notifications where the government officers were put in place for the purpose of the election, at someone’s behest.

Initially, the ECP had written letters to the CJs of high courts, but they all had refused to provide judicial officers for the election duties.

The court also issued notices to the federal government as well as AGP and advocate generals of all the provinces.

Published in Dawn, December 16th, 2023

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