ISLAMABAD   -   The Supreme Court of Pakistan by a majority of 2-1 ruling on Monday set aside the Lahore High Court (LHC) judgments announced in writ petitions regarding recount of votes.

A three-member bench of the apex court headed by Chief Justice Qazi Faez Isa and comprising Justice Naeem Akhtar Afghan and Justice Aqeel Ahmed Abbasi announced its reserved judgement against the LHC judgments. Justice Abbasi dissented with the ruling.

The different benches of the High Court in the writ petitions of Rana Muhammad Faraz Noon, Abdul Rehman Khan Kanju, Ch Bilal Ejaz, and Muhammad Atif against the Election Commission of Pakistan had passed the impugned judgments.

The court emphasised that the Election Commission is a constitutional body and its Chairman and Members are entitled to respect. Unfortunately, at places some judges of the High Court lost sight of this and passed derisive remarks. Every constitutional body and constitutional office holder, in fact everyone, is deserving of courtesy and respect. Institutions gain in stature when they act respectfully.

It added that in these cases the difference in the margin of victory was well within the stipulated percentile/number. Nonetheless, the contesting respondents challenged the order of the recount and/or challenged the result of the recount by filing writ petitions in the High Court under Article 199 of the Constitution.

The apex court said that learned Judges overlooked the constitutional preconditions before exercising jurisdiction under Article 199 of the Constitution, which were that the petitioner must be aggrieved and must not have other adequate remedy; on both these counts the writ petitions were not maintainable. They also failed to observe that Article 199 commences with the words – ‘Subject to the Constitution’ and that this limitation was absent from Article 225 of the Constitution, whereunder election petitions are filed before the Election Tribunals.

It continued that the judges of the High Court also allowed the writ petitions without considering the law, which had been interpreted and explained in the cited precedents of this Court, particularly of the larger four and five member Benches, respectively in the cases of Javaid Hashmi, Ghulam Mustafa Jatoi and Aftab Shahban Mirani (above). In these precedents of this Court it was stated that the jurisdiction of the High Court (under Article 199 of the Constitution) can only be invoked when ‘no legal remedy is available to an aggrieved party’ ‘or in respect of the orders which are coram non judice, without jurisdiction or mala fide.’

It further said that the contesting respondents who had invoked the jurisdiction of the High Court could not be considered to be aggrieved by the administrative-ministerial act of recounting. Moreover, they had other adequate remedy. Therefore, the two prerequisites (aggrieved person and absence of adequate remedy) necessary to invoke Article 199 were not met.

The SC maintained that the Commission was also not coram non judice nor lacked jurisdiction in ordering recount. The Constitution has bestowed on the Commission (and not on the High Courts) the duty to conduct elections in accordance with law. And it cannot be contended that, when the circumstances envisaged in section 95(5) of the Elections Act were met the seeking of and the ordering of recount of the ballot papers was mala fide. Instead of filing writ petitions the contesting respondents could have filed election petitions before the Election Tribunals. And, any person aggrieved by the decision of the Election Tribunal could then have filed an appeal to the Supreme Court, under section 155 of the Elections Act.