ISLAMABAD  - The Supreme Court of Pakistan on Monday set aside the Lahore High Court (LHC) judgment and the notification issued by it for constitution of Election Tribunals in the Punjab province for disposal of the petitions regarding general elections 2024.

 A five-member bench of the SC headed by Chief Justice Qazi Faez Isa Monday announced the judgment which it had reserved on September 24.

The judgment said; “Since the matter has been amicably resolved to the satisfaction of the Chief Justice of the Lahore High Court and the Election Commission of Pakistan (ECP) adjudication was not called for, resultantly, the impugned judgment is set aside and also the notification dated 12 June 2024 issued pursuant thereto.” A single bench of the LHC on May 29 held that under Article 219(c) read with Article 222(b) of the Constitution, the Chief Justice of the High Court enjoyed primacy in the appoint­ment of election tribunals un­der Section 140 of the Elections Act, 2017.

Justice Jamal Khan Mandokha­il wrote an additional note. He hoped that now the Commission will take all necessary steps im­mediately, enabling the Tribu­nals to start functioning and to conclude the proceedings upon the petitions within the stipulat­ed period of time, accordingly.

He observed that the ECP is constituted under Article 213 of the Constitution and under sub-paragraph of the said Arti­cle, the Commission shall have such powers and functions as are conferred on it by the Con­stitution and law. Under Article 218(3) of the Constitution, it is the duty of the Commission to organize and conduct the elec­tion and to make arrangements as necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt prac­tices are guarded against. Ac­cording to Article 219 of the Constitution, the Commission is exclusively charged with a duty to appoint as many Elec­tion Tribunals as may be neces­sary for swift disposal of elec­tions petitions.

He noted that the Constitu­tion does not provide the pro­cedure, qualification and man­ner of appointment of Tribunal, however, Article 213(3) of the Constitution provides that the Commission shall have pow­ers and functions as are con­ferred on it by the Constitution and law. To regulate the power and function of the Commission with regard to appointment of Tribunal, procedure has been provided by section 140 of the Elections Act, 2017.

Justice Jamal wrote that no doubt, the power to appoint Tri­bunals rests only with the Com­mission, but in order to ensure free and fair election, an inde­pendent machinery is neces­sary. In such view of the mat­ter, the power to adjudicate such delicate task, has been as­signed to the judiciary. There­fore, in case of appointing a sitting Judge of a High Court, consultation with the Chief Jus­tice of the High Court concerned by the Commission is a condi­tion precedent. He added that the purpose of consultation is because of the realization that the Chief Justice is not only the administrative head of the High Court but also is in best position to know and assess the suitabili­ty and availability of the Judges. As several Judges are perform­ing their functions in different Benches, therefore, while nom­inating Judges, it will be con­venient for the Chief Justice to consider availability of Judges at relevant Benches. In this way, the determination of territorial jurisdiction can also be resolved suitably. Once the Chief Justice nominates Judges for the pur­pose of appointment as Tribu­nals, the Commission is bound to accept the names and notify them accordingly, unless, there are cogent reasons, which must be communicated to the Chief Justice. If the Chief Justice is sat­isfied with the reasons advanced by the Commission, he may sub­stitute a Judge accordingly.

He mentioned that the Consti­tution and section 140 of the Act do not provide for any provision, enabling the Commission to re­quest for a panel of Judges for the purpose of appointment as Tribunals. The intention of the Legislature is evident of the fact that they did not assign pow­er to the Commission to ask for a panel of Judges and pick and choose a Judge of its own choice amongst them. The Commission must have a faith in every Judge and can only ask a Judge against each Tribunal. The primacy, therefore, lies in the final opin­ion of the Chief Justice.

He expected that members of both the institutions must re­spect each other and in case of any issue, they are supposed to have a meaningful consultation as has been provided by the Act. In the case in hand, earlier there was no meeting between the two institutions, therefore, there was no proper consulta­tion, which has resulted into litigation.