SENATOR Adnan Khan of Pakistan People’s Party had contested the 2009 senate elections on a stay order from the Peshawar High Court. The high court had granted interim relief to him and suspended an order of the concerned returning officer whereby he was disqualified from contesting those polls. Around three years have passed, the said stay order is still in the field and the court is yet to decide the writ petition filed by Senator Adnan against his disqualification.

Recently, a bench of the high court headed by Chief Justice Dost Mohammad Khan took up for hearing the said writ petition. The counsel of Senator Adnan, Mr Makhdum Ali Khan, who is a former attorney general for Pakistan, could not turn up. An official of the court informed that notice was not served on him.

Former president of Supreme Court Bar Association, Qazi Mohammad Anwer, appearing for a losing candidate in that elections, stated that the petition had been lingering on for the last three years and the senator had completed half of his six year term in the Senate. He added that Makhdum Ali Khan was a known lawyer and his addresses would be available on the directory of the Supreme Court.

The bench adjourned the hearing to third week of March while issuing fresh notices to the counsel as well as Senator Adnan directing them to positively appear on next date. On several occasions the hearing in this case had to be adjourned either due to non-appearance of the counsel or any other reason. On June 29, 2011, the court had taken exception to the continuous non-appearance of the counsel and warned that next time his writ petition on the issue would be heard in his absence.

The nomination papers of Senator Adnan Khan for the seats reserved for technocrats from Khyber Pakhtunkhwa were rejected by the concerned returning officer. The officer had observed that Mr Khan did not qualify the definition of a technocrat as he did not possess the experience of 20 years in relevant field as required under section 2(d) of the Conduct of General Elections Order, 2002, for a candidate contesting for the seat of a technocrat.

The appellate tribunal had also maintained the decision of the returning officer. The high court had on Feb 25, 2009, granted interim relief to the petitioner and allowed him to contest the elections by suspending the impugned order of the returning officer.

This is not the only case of its kind when an election dispute remains pending for many years. Most of the election petitions filed by the losing candidates after the Feb 18, 2008, general elections have still been pending before the designated election tribunals. Similarly, some writ petitions filed by voters against elections of different law makers have also been pending for last many years.

It has now become a routine practice that election petitions are filed after every general election and most of it remains pending before the tribunals and appellate forum. Thus the post-election disputes continue to persist till next such general elections.

Article 225 of the Constitution provides that no election to a house or a provincial assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Parliament. The mechanism of filing the election petition and the procedure of its hearing have been provided in the Representation of Peoples Act (RPA), 1976.

Under section 57 of the Act the CEC shall appoint as many election tribunals as may be necessary. The tribunal shall consist of a person who has been, or is, or at the time of his retirement as a district and sessions judge was qualified to be a judge of a high court.

Normally, the CEC appoints a sitting judge of the high court as election tribunal. In Peshawar Justice Mazhar Alam Miankhel had been entrusted with most of the election petitions. Few weeks ago Justice Mazhar Alam has been nominated to perform at high court’s circuit bench at Mingora, commonly known as Darul Qaza, for a period of one year. After his nomination he had returned the election petitions to the Election Commission of Pakistan. So far the CEC has not appointed another tribunal for resuming hearings in those petitions. These election petitions are of important nature as some of these are against sitting ministers Rahimdad Khan, Syed Aqil Shah, Sher Azam Wazir and Zahir Shah. Election petitions have also been pending against MNAs and MPAs.

Section 67 (1A) of the RPA has made it mandatory on the election tribunal that it should proceed with the trial of the election petition on day to day basis and the decision thereof shall be taken within four months from its receipt.

In Nov 2009 amendments were made in the law so as to ensure speedy disposal of the election petitions, but those also failed to bear fruit. Through those amendments the tribunal is empowered to suspend membership of a law maker after serving a show cause notice on a returned candidate when the delay in proceedings is occasioned by any act or omission of the returned candidate.

Presently, in the Peshawar High Court seven of the 20 sanctioned seats of judges have been lying vacant. Out of these 13 judges two each have been serving at the circuit benches at Dera Ismail Khan, Abbottabad and Mingora, whereas another one is performing at Bannu bench of the court. Only six judges are presently serving in Peshawar.

Legal experts dealing with election petitions believe that in present circumstances it was next to impossible for the tribunals to meet the deadline given in the law for deciding the election petitions. They said that keeping in view the growing number of cases pending before the high court it was difficult to spare a judge for the election tribunal.Experts were of the opinion that instead of appointing a serving judge of the high court as tribunal, the CEC should appoint a retired judge of the high court or a retired district and sessions judge for that task.