ISLAMABAD: Refusing to suspend the Lahore High Court’s (LHC) May 29 pronouncement, the Supreme Court on Thursday sought the formation of a five-judge larger bench to settle the controversy over whether the Election Commission of Pakistan (ECP) or the high court should appoint tribunals to decide electoral disputes.

The order was issued by a two-judge bench, headed by Chief Justice of Pakistan Qazi Faez Isa, which had taken up an ECP appeal that sought the overturning of the LHC order.

The court ignored the request by senior counsel Sikandar Bashir Mohmand, who represented the ECP, to suspend the LHC pronouncement. The counsel feared that if the judgement remained in the field, it would impede meaningful consultations between the ECP and the LHC chief justice.

On May 29, an LHC bench had held that the high court CJ enjoys primacy in the appointment of election tribunals under Section 140 of the Elections Act 2017.

CJP Isa seeks formation of larger bench; Justice Afghan wonders why no such row occurred in other provinces

Though the SC did not grant any interim relief to the ECP, legal observers believe that, in practical terms, it was a kind of a stay order, since the ECP counsel had highlighted that the consultation process was still ongoing and that the ECP chief would be meeting the LHC CJ soon.

This means the ECP may not mark any disputes to the eight tribunals appointed by the LHC.

The CJP highlighted that people expect the constitutional officeholders not to indulge in any confrontation otherwise the country would not function in accordance with the law.

The SC also ordered the ECP to furnish correspondence and notifications about the appointment of tribunals in other provinces.

Justice Naeem Akhtar Afghan noted that no disagreement had occurred regarding the appointment of similar tribunals in other provinces.

He observed that correspondence between the ECP and CJs of other high courts would help the SC understand why the controversy occurred only in Punjab.

He cited the example of KP, where the notification about the appointment of tribunals had been issued by the ECP, and recalled how when he was the chief justice of Balochistan High Court, he had issued a similar direction for the appointment of tribunals by the ECP.

‘Belated action’

Senior counsel Salman Akram Raja contended that petitions before the high court were maintainable because sufficient tribunals had not been appointed, adding that only two had been appointed belatedly, by the ECP. He said the ECP did not comply with its constitutional and legal duty.

Though a constitutional body, he argued, the ECP was not a judicial body empowered to appoint tribunals and that judicial power vests in the high court, though it required meaningful consultation with the LHC CJ.

He said the ECP should have challenged the LHC’s judgement by filing intra-court appeals instead of filing the appeal directly with the Supreme Court.

Advocate Niazullah Khan Niazi highlighted that nine people had filed an application to support Mr Raja’s contentions and they should be impleaded as respondents.

Since the petitioner and the contesting respondents have raised substantial constitutional and legal points, it would be appropriate to grant leave, the court order said.

Besides, the SC issued notice to Attorney General Mansoor Usman Awan since these cases involved the interpretation of the Constitution and the Elections Act, 2017.

Published in Dawn, June 21st, 2024