ISLAMABAD: The Election Commission has challenged the Lahore High Court’s (LHC) decision to appoint six tribunals to settle election disputes in Punjab.

In a petition moved before the Supreme Court on Thursday, the electoral watchdog also questioned whether the ECP or LHC has the final say in the appointment of tribunals.

On May 29, while hearing petitions filed by PTI-backed independent candidates Advocate Salman Akram Raja and Rao Omar Hashim Khan who had lost the general election, the LHC decided that that under Article 219(c) read with Article 222(b) of the Constitution, the LHC chief justice of has pre-eminence in the appointment of the election tribunals under Section 140 of the Elections Act, 2017.

Moved through senior counsel Sikandar Bashir Mohmand, the ECP recalled the entire chronology of events regarding consultations with the LHC CJ for the appointment of judges.

Petition seeks determination on who has superiority in appointing appellate bodies

On Feb 14, ECP requested a panel of serving judges for their appointment to election tribunals.

In response the LHC CJ nominated Justices Sardar Muhammad Sarfraz Dogar and Sultan Tanvir Ahmad whose appointments were notified by the ECP on Feb 20.

However, on April 4, the LHC CJ nominated six more judges for election tribunals, of which the ECP notified two on April 26.

On the same day, the ECP also sought more names of sitting judges to be appointed as election tribunals in Rawalpindi and Bahawalpur.

In reply, the LHC CJ objected to the ECP’s demand, stating that in the past, ECP never sought names of judges for their appointment to election tribunals.

The LHC registrar’s reply also urged the commission to immediately issue notification of election tribunals comprising judges already nominated by the CJ.

In response to the LHC registrar, ECP stated that acceding to this demand would mean that the tribunals were appointed solely by the CJ and not after “meaningful consultation” with ECP, which was not in line with Section 140(3) of the Elections Act.

The said section states that the ECP will appoint a sitting judge as election tribunal “in consultation” with the chief justice of the high court concerned.

The commission also informed the LHC that in 2018 when the then-chief justice sought to replace a judge he had recommended for election tribunal, the then-chief election commissioner said if the request was accepted, it would amount to the appointment by the CJ.

The said request was then placed before ECP and it was approved with an added note that a single nomination would not be approved in future.

This precedent clearly established that not only does ECP have primacy in the appointments of tribunals, the commission has even asserted it previously, the petition said.

The petition highlighted that in conferring absolute primacy to LHC CJ over ECP in the consultation process for the appointment of election tribunals, the May 29 LHC order failed to even consider past precedents.

The commission’s petition recalled that in 1977, 41 high court judges were nominated or recommended for elections tribunals, of which only eight were appointed by the ECP.

Likewise, in 1985, five judges were nominated, but none were appointed, whereas in 2002, 14 high court judges were recommended, and only seven were notified by the ECP.

The petition continued that in 2013, 61 retired district and sessions judges were nominated out of which only five were appointed by ECP.

Published in Dawn, June 14th, 2024