KARACHI, Jan 28: A full bench of the Sindh High Court dismissed on Monday two writ petitions challenging the eligibility of national and provincial assembly candidates from Sangarh and Jacobabad, and summoned a university registrar on Feb 4 in a third moved by a candidate from Ghotki.
The candidature of Jam Mashooq Ali from NA-236 (Sangarh) was challenged by his rival, Roshan Din Junejo, while Imdad Ali Khan Sarki wanted Mir Hazar Khan Khoso disqualified to contest from PS-15 (Jacobabad). Election petitions against them were turned down by election tribunals comprising two SHC judges each and they questioned the orders by writ petitions, being heard by a three-member bench consisting of Chief Justice Mohammad Afzal Soomro and Justices Qaiser Iqbal and Mahmood Alam Rizvi.
Ahmad Yar Khan from PS-5 (Ghotki) moved a petition against his disqualification by an election tribunal. The bachelor’s degree he had submitted at the time of filing his nomination was not challenged and the returning officer accepted it as authentic. His rival, Hasan Ali Dasti, later filed an election appeal, which was allowed when a tribunal found it to be fake. The candidate then produced a sanad or certificate from a madressah and claimed that it was equivalent to the bachelor’s degree.
After hearing Advocate Neel Keshav for the petitioner and Advocate Imdad Awan for respondent Dasti, the bench asked the registrar of Shah Abdul Latif University, Khairpur, to appear on Feb 4 and record his statement on the authenticity and equivalence of the degree.
Arguing for petitioners Junejo and Sarki, Advocate Anwar Mansoor Khan submitted that Sections 14 (5) and 14 (5) (a) were inserted in the Representation of People Act (RPA), 1976, in 1991 to provide for election tribunals to decide electoral challenges pertaining to the eligibility of candidates before elections. The new provisions thus modified the 1989 Supreme Court ruling in Javed Hashmi’s case, which declared that election disputes should be postponed until after balloting. The election tribunals created by the new provisions to hear appeals against acceptance or rejection of nomination papers by the returning officers would be rendered useless if all electoral matters were to be decided after the vote count, the lawyer maintained.
Appearing for the respondents, Advocates Makhdoom Ali Khan, Abrar Hasan and Khalid Maqbool Siddiqui argued that the preponderance of superior court judgments favoured settlement of election disputes after balloting. The RPA provided that all election disputes, including irregularities in the conduct of election and counting of votes, should be challenged by the aggrieved parties and decided by election tribunals, which were empowered to look into legal and factual controversies and record evidence.
Assisting the court in response to a notice, Advocate-General Dr M. Farogh Naseem submitted that Article 225 of the Constitution stipulated that no election to a federal or provincial legislature shall be called in question except by an election petition moved before a tribunal set up by law. The 1989 Supreme Court ruling was based on this constitutional provision. Neither RPA provisions, new or old, nor Article 199 overrode Article 225. The new RPA provisions only provided for pre-election tribunals to settle disputes where the returning officers’ orders were patently illegal or without jurisdiction. The law as enunciated by the Supreme Court in 1989 had not been materially altered by the insertion of new provisions in the RPA.
Referring to the constitutional provisions, the RPA and the Election Order of 2002, the AG said the whole thrust of election laws was to throw the electoral contest wide open to the eligible contestants. The pre-balloting proceedings were summary in nature and all election disputes could be decided by election tribunals set up by the Election Commission after voting. Though the tribunals were to consist of high court judges, there was no bar on them from investigating factual disputes and record evidence. The settlement of election disputes in exercise of writ jurisdiction was neither possible nor advisable as it would amount to creating a parallel forum in deviation from the constitutional mandate.
He called for dismissal of the two petitions challenging the eligibility of rival candidates and acceptance of one candidate’s petition in favour of his eligibility. If he lost the polls, there would be no need for further proceedings and if won the ballot, his eligibility could be subjected to scrutiny by a tribunal, the AG argued.