ISLAMABAD: The Election Commission of Pakistan (ECP) on Tuesday accepted for regular hearing applications filed by all three winners of National Assembly seats from Islamabad seeking the transfer of election petitions to some other tribunal.

A three-member bench headed by Chief Election Commissioner Sikandar Sultan Raja while issuing notices to the respondents fixed June 6 as the date of hearing.

“Point raised needs consideration. Therefore, the application is admitted for regular hearing and office is directed to issue notice to the petitioner in the election petition…and election tribunal is directed to submit the record before the Commission,” the ECP order issued hours after being reserved following a brief hearing reads.

Anjum Aqeel Khan, Dr Tariq Fazal Chaudhry and Raja Khurram Shahzad — declared winners from NA-46, NA-47 and NA-48 respectively — also prayed to stay proceedings in the tribunal till the final disposal of their applications.

CEC issues notices to respondents, fixes June 6 as date of hearing

Appearing before the ECP bench, counsel for Raja Khurram Nawaz objected to the remarks by the tribunal threatening to send behind bars those found to have filed false affidavits. He said his client felt harassed by the remarks passed by the tribunal which he alleged was acting partially.

“You should not be afraid of jail if you have not done anything wrong,” the CEC remarked.

The counsel said it was beyond jurisdiction of a tribunal to send some party to jail. He sought orders of the ECP to immediately halt the proceedings before the tribunal. It was highlighted that under section 151 of the elections act the ECP can transfer cases from one tribunal to another. At a stage, the chief election commissioner pointed out that there was only one tribunal for Islamabad.

The counsel said the ECP can constitute more tribunals and suggested the appointment of a retired judge as a tribunal.

The counsel for Anjum Aqeel Khan said the ECP can also transfer the cases to some tribunal in Khyber Pakhtunkhwa (KP). Objections were also raised over what was called “speedy trial” and the comparison of the ECP’s record with that provided by the petitioners.

Answering a question, the counsel admitted that the objections had not been raised before the tribunal.

Tariq Fazal Choudhry’s lawyer claimed that according to the Code of Civil Procedure (CPC) the tribunal was under the ECP. He said a candidate produced a document from his pocket which the tribunal promptly accepted without being cross-checked. He claimed that no legal regulation had been adopted and the proceedings were initiated.

In response, the chief election commissioner asked whether the lawyer meant to say that a witness would have been produced and cross-checked. The lawyer replied the trial had not commenced while the judgement had already been issued.

When the CEC asked whether the tribunal should proceed with the case, the lawyer argued that under the Election Act the commission had the authority to establish and change the tribunals as needed. The CEC queried the legal basis for halting the proceedings.

In reply, the lawyer asserted that all powers under the CEC were vested in the ECP, allowing it to establish multiple tribunals.

The counsel for petitioners also said the tribunal instead of acting like a trial court was exercising powers of the high court.

The three MNAs in their applications had expressed apprehensions that they will not get justice from the tribunal where their cases were pending.

“The right of individuals to be dealt with in accordance with law is a universal code of justice,” one of the applications reads and refers to Article 4 of the Constitution which guarantees it. It also says that the right to fair trial was the corner stone of justice and refers to Article 10-A of the Constitution.

The case came up for hearing two weeks after an audit of key election documents revealed that all the declared winners from Islamabad actually had obtained less votes than the runners-up.

Under section 157 of the Elections Act, “The Election Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been elected, if it is claimed by the petitioner or any of the respondents, and the Tribunal is satisfied that the petitioner or other contesting candidate obtained more votes than the returned candidate”.

Under section 155 of the Act, any person aggrieved by the final decision of the Election Tribunal in respect of an election petition challenging election to an Assembly or Senate may, within 30 days of the date of the decision, appeal to the Supreme Court.

Published in Dawn, June 5th, 2024

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