ISLAMABAD: A day after the Election Commission of Pakistan (ECP) accepted the applications of three lawmakers elected from Islamabad to move challenges to their victory to some other election tribunal, the PTI nominees moved the Islamabad High Court against the decision and also contested a recent ordinance that allowed the ECP to appoint retired judges to the tribunals.

The amendments to the Election Act through an ordinance promulgated last month allowed retired judges to preside over election tribunals without the consultation of the chief justice. The plea also questioned the authority to entertain the no-confidence application against the judge of the Islamabad High Court who was appointed as the presiding officer of the tribunal for the federal capital.

Mohammad Shoaib Shaheen and Mohammad Ali Bukhari filed identical petitions through their counsel. The petitions challenged the vires of Section 151 of the Elections Act, 2017 and the Ordinance V of 2024, namely, the Elections (Amendment) Ordinance 2024, promulgated on May 27, 2024. The petitions termed them ultra vires to Articles 4, 9, 10-A, 25 and 175(3) of the Constitution.

In his petition, Mr Shaheen contended that as per Forms-45 he had won the elections with a heavy margin but surprisingly, due to manipulation in the results allegedly by Tariq Fazal Chaudhry in “active connivance” with officials of the ECP, he had been defeated. The petition stated that following the notification of the election tribunal for Islamabad, Mr Shaheen filed an election petition before the tribunal appointed under Section 140 of the Elections Act, 2017.

It went on to state that on the first date of the hearing, the tribunal issued notices to the ECP, returned candidates, and the returning officers and directed them to file original Form-45 and Form-46 vide order dated May 2, 2024. On May 20, the ECP and some of the respondents appeared and the tribunal directed them to file their replies and original documents.

On May 29, the ECP filed certified copies of Form-45 and Form-46 but it did not file a reply along with some other respondents, including Dr Tariq Fazal Chaudhry. The tribunal gave the last and final opportunity asking the respondents to submit a response within one week, and those who did not appear would face ex-parte proceedings.

According to the petition, Mr Chaudhry filed an application under Section 145(1) of the Elections Act, 2017, for summary dismissal of the election petition on the ground that the same was time-barred. The tribunal after hearing preliminary arguments issued notice to the petitioner with a direction to file a reply by giving an advance copy to the other side, and adjourned the case to May 5 for arguments on the said application.

Against the backdrop of these developments, the Elections (Amendment) Ordinance 2024 was issued on May 27 which amended Section 140 of the Elections Act and allowed for retired judges to be appointed as election tribunals and that too without the consultation of the chief justice.

According to the petition, there was no legal remedy left to the petitioner than to approach the IHC. It may be mentioned that the election petition was fixed before the tribunal today, but the hearing was cancelled by the order of the presiding officer.

No-confidence against tribunal

A day earlier, ECP admitted for regular hearing applications filed by all three PML-N MNAs 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 a brief hearing read.

Published in Dawn, June 6th, 2024