ISLAMABAD: The Election Commi­ssion of Pakistan’s (ECP) appeal against Lahore High Court’s (LHC) decision regarding the appointment of election tribunals has been fixed for hearing in the Supreme Court.

A two-judge bench consisting of Chief Justice Qazi Faez Isa and Justice Naeem Akhtar Afghan will take up the case on June 20.

In its appeal, the ECP sought clarity on whether the commission or the LHC chief justice has pre-eminence when appointing election tribunals under Section 140 of the Elections Act 2017.

The commission pleaded that on Feb 14, it requested the LHC CJ for names of serving judges to be appointed as election tribunals as per the mandate of Article 219(c), read with Article 222 of the Constitution and Section 140(3) of the Elections Act.

CJP-led bench to hear challenge to verdict on tribunals’ appointment

But in response, the LHC CJ nominated Justices Sardar Muhammad Sarfraz Dogar and Sultan Tanvir Ahmad to be appointed as election tribunals, and it was duly notified by ECP on Feb 20.

However on April 4, the LHC CJ, in addition to his earlier recommendations, nominated six more judges for the appointment of election tribunals. The ECP notified two of them as election tribunals for Lahore on April 26.

On the same day, ECP wrote a letter to the LHC CJ requesting more names of sitting judges for their appointment as election tribunals in Rawalpindi and Bahawalpur.

In reply, the LHC CJ objected to the ECP’s demand, stating that in the past, the commission 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, the 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 an 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 election 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 whom only five were appointed by ECP.

Published in Dawn, June 15th, 2024