ISLAMABAD: The Isla­m­­abad High Court (IHC) on Tuesday suspended the decision of the Election Commission of Pakistan (ECP) to transfer election petitions related to the federal capital, from an IHC bench to a tribunal led by a retired judge.

Chief Justice Aamar Farooq, while hearing the petitions of the PTI runner-up candidates from Isla­mabad — Shoaib Sha­heen, Mohammad Ali Buk­hari, and Amir Mug­hal — issued a stay order against the decision.

The PTI leaders challenged the proceedings of the ECP on the applications of three MNAs of the PML-N seeking the transfer of the election petitions from the tribunal presided over by Jus­tice Tariq Mehmood Jahangiri. The petitioners also challenged the presidential ordinance promulgated on May 27, 2024, that provided for the appointment of retired judges to head the election tribunals.

Subsequently, the ECP constituted an election tribunal headed by a retired high court judge Shakoor Paracha for Rawalpindi and Islamabad on June 7. On June 10, it ordered the transfer of petitions against the three MNAs from the capital, namely Anjum Aqeel Khan, Dr Tariq Fazal Chaudhry, and Raja Khurram Nawaz, to the tribunal led by retired Justice Paracha.

‘Novel precedent’

During the hearing on Tuesday, Justice Farooq expressed displeasure over the ECP’s decision and asked the ECP director general law to explain the reasons behind its move. DG Law Arshad Khan replied that the tribunal did not follow procedures.

Justice Farooq remarked that the ECP introduced a novel precedent by transferring the election petitions from one tribunal to another and added that the petition could not be transferred unless there was ample evidence of discrimination.

He pointed out that IHC Justice Jahangiri was nominated by the Chief Justice upon the ECP’s request and questioned how the ECP could transfer the election petitions unilaterally. Advocate Ashfaq Naqvi, counsel representing Ali Bukhari, contended that under Section 151 of the Elections Act, 2017, the power had been granted to the ECP to transfer a matter pending before election tribunal. In this regard, it was contended that power was not administrative in nature but quasi judicial.

He further contended that the dispute before the election tribunal was of the nature where allegations had been levelled against the ECP and it was a trite law that no one could be a judge in their own case; hence, the ECP ought not have the power to transfer.

Mr Shaheen stated that the consultation of the CJ of the respective high court was mandatory before the power of transfer was exercised.

The counsel for the petitioners contended that in the scheme of separation of powers, the independence of judiciary was highlighted and where judiciary was independent, even though it was acting as a tribunal, it should not be undermined in any way.

According to the counsel, an amendment had been sought in Section 140 and it was provided that in an election tribunal, even a former judge of the high court, could be appointed without the consent of the chief justice of the respective high court, which was against the spirit of independence of the judiciary.

In response to the query of the court, the ECP counsel contended that the tribunal when “sits does not act as a high court and the matter was settled in the case reported as al-Jehad trust”.

Published in Dawn, June 12th, 2024

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