ISLAMABAD - The Islamabad High Court (IHC) Thursday annulled the Election Commission of Pakistan’s decision to change the judge of Election Tribunal.
A single bench of IHC comprising Chief Justice of IHC Justice Aamer Farooq announced his reserved judgment in the petitions challenging the Elections (Amendment) Ordinance, 2024 related to transfer of a matter pending before the Election Tribunal.
Pakistan Tehrik-e-Insaf (PTI) leader Shoaib Shaheen, Syed Ali Bukhari and Aamer Masood had moved five separate petitions through their counsels including Barrister Sajeel Sherhyar Swati, Umair Baloch and others while the bench had reserved the judgement after hearing the arguments of both the sides.
Besides allowing the petition, Justice Aamer also sent the matter back to the ECP to decide the matter again.
The IHC bench stated in his 44-page written judgment that the petitioners have also challenged transfer orders passed by ECP regarding transfer of election petitions filed by the petitioners to newly constituted Tribunal under the Elections (Amendment) Act, 2024.
It mentioned that the reading of the transfer applications, filed by the private respondents in the writ petitions, shows that primary allegation of “bias” was levelled against the Tribunal presently hearing the petitions.
Waqas Mir, Advocate Supreme Court, appearing for private respondents, however, did say that there were allegations of flouting the mandatory provisions of Elections Act as well and since the respondents have no other remedy, hence applications for transfer were made.
The bench maintained that the referred stance of counsel for the private respondents is not tenable inasmuch as without adverting to the merits of the matter, even if any order is passed by Election Tribunal which was in violation of the mandatory provisions of Elections Act, 2017, the respondents always had the remedy of moving an appropriate petition under Article 199 of the Constitution pursuant to the dictum of the Supreme Court in case reported as PLD 1966 SC 1 supra.
The IHC bench stated that it is an admitted position that no such application was filed and straight away transfer applications were filed on the basis of “bias”. It added that it was affirmed by counsel for the petitioners that no opportunity was provided to them to file reply to the transfer applications and only in one case the petitioner namely Aamer Masood did file reply though ECP did not ask him to do so.
The IHC verdict said that the stance taken by counsel for the petitioners is that since the Tribunal, presently hearing the petitions, is a sitting Judge of this Court, application for recusal had to be made to him and transfer application was not maintainable.
It further said, “No doubt, the Presiding Officer currently hearing the election petitions, is a sitting Judge of this Court, however, as was observed in case reported as PLD 1966 SC 01 that when a Judge of a High Court was sitting as an Election Tribunal, he is persona designata and does not act as High Court.
However, the IHC Chief Justice said that the proper process ought to have been that a request should have been made in this regard to the Presiding Officer for recusal from the case and the rest left to the conscious of the Judge, but since the Presiding Officer, is not the Judge of the High Court, normal principles ought not be applicable and “bias” may still be a ground, but burden of proof of “bias” is heavy and mere wrong application of law and not granting adjournments or rejection of the applications or making certain observations in the Court, is not a ground for “bias”.
He added, “Having said that, the important aspect of the matter is that ECP seems to have proceeded with the transfer application in haste without providing opportunity of filing affidavits and counter-affidavits/replies to the allegation of “bias” or misapplication of law. Proper opportunity should have been granted to the petitioners; failure on part of ECP to grant such opportunity to present the case, apparently is in violation of Article 10-A of the Constitution.
“It is settled that ECP is not a “judicial forum”; it is not even purely executive, as noted, it is a constitutional body, which has some quasi-judicial powers to perform while deciding certain issues. The power of transfer is supervisory and administrative in nature and has to be exercised after providing opportunity to everyone concerned,” said the judge.
He continued, “There is nothing on record to show that the same was done and in one of the writ petitions (W.P. No.1981-2024), while allowing the transfer application, even merits were touched and finding on the same was rendered, which is surely not the mandate of ECP. In such view of the matter, it is only appropriate that ECP revisits the matter because it does have the authority and mandate to decide transfer application under section 151 and also can transfer petitions suo moto but has to give reasons for the same.”
The IHC CJ also said that, however, where the application has been filed for transfer, naturally all parties are to be heard, which in the instant case, was not done as such, in a proper manner, hence the impugned orders are not sustainable and merit setting aside.
He concluded that for what has been stated above, W.P. No.1977-2024, W.P. No.1981- 2024 & W.P. No.1984-2024, are allowed and transfer orders dated 10.06.2024 passed by ECP are set aside; consequently, transfer applications filed by private respondents, shall be deemed to be pending and decided in accordance with law and observations made hereinabove.
He added that W.P. No.1796- 2024, W.P. No.1797-2024 & W.P. No.1798-2024, challenging vires of section 151 ibid, are dismissed for the reasons stated above.