Order passed by ECP smaller bench not illegal: SC

ISLAMABAD – The Supreme Court Saturday held any order passed by a bench of Election Commission of Pakistan comprising a lesser number of its members shall not be legally void or non-viable.

The apex court upheld the order passed by a three-member ECP bench on January 25, 2016, wherein defection of the appellants (two councilors of Khyber-Pakhtunkhwa) was upheld by the poll body after Pakistan Tehreek-e-Insaf (PTI) issued show-cause notice and declared them to have defected under Section 78A of KP Local Governments Act, 2013, (Amendment Act, 2015), and referred the matter to the ECP for confirmation.

The two councilors had challenged the ECP order in the Peshawar High Court (PHC) which also dismissed their appeals. Later, they challenged the high court decision in the Supreme Court. The apex court said the order was validly passed and dismissed their appeals

A three-judge bench, headed by Chief Justice Mian Saqib Nisar, reserved the judgment on September 22 after hearing arguments of all the parties.  Sardar Sher Bahadur was elected as a member of Union Council Kehal (Urban), Abbottabad, as an independent candidate and Shaukat Ali Tanoli was elected as a member of the district council on the PTI ticket.

After elections, Bahadur joined PTI on June 25, 2015, and when the schedule for the election of Nazim and Naib Nazim was notified on August 19, 2015, they were members of PTI.

The KP provincial government on August 24, 2015, inserted Section 78A in K-P Local Government Act, (Amendment Act 2015) to provide consequences for violation of the party direction in the shape of defection.

PTI nominated Ali Khan Jadoon and Sadar Waqar Nabi for Nazim and Naib Nazim slots, respectively. Bahadur and Tanoli, instead of voting for the party candidates, contested elections of Nazim and Naib Nazim as independent candidates and won. The PTI issued them show-cause notices over defection by invoking the provision of Section 78A of the Act 2015 and referred the matter to the ECP for confirmation. The ECP affirmed the defection on January 25, 2016. Both Bahadur and Tanoli challenged the ECP order in PHC through an election appeal which was dismissed on April 6, 2017.

The appellants had taken the stance that the said amendment could have no retrospective effect as nothing in this regard has been specifically mentioned therein, so it was not applicable to their case. They had also argued that the process of election commenced with the notification dated 19.8.2015 when the electorates were called upon to elect their Nazim and Naib Nazim. Therefore, the law applicable to the process of election, which was in force at the relevant point of time, should be attracted. The respondents (ECP, PTI) took the stance that Section 78A was added as a measure to prevent horse-trading and enforce political discipline, so the said amendment would operate prospectively, covering the elections (dated 30.08.2015.

The top court noted a statute or any amendment thereto ordinarily operates retrospectively. The apex court also noted the purpose and object of the above-said amendment is clear that the law was amended and the said section was introduced just a few days prior to election with the clear intention to apply it to the future elections to be held after August 30, 2015, and a necessary intendment of the legislature can be validly drawn that it was meant to apply to the forthcoming elections (to be held on 30.8.2015). Moreover, by virtue of the said amendment, no substantive rights of the appellants have been infringed, because not only the voting had to take place on 30.8.2015 but also the nomination papers were to be filed on the said date, the apex court said.

The appellants had also challenged the validity of the orders passed on 25.01.2016 and 29.10.2015 by a three-member bench of ECP, in which the chairman and one member did not participate. It was their contention that when the order for the defection of the appellants was passed, the ECP was not properly constituted in terms of Article 218 of the Constitution, under which the ECP comprises five people –chairman and four members. But three members of ECP decided their cases.

The counsels for the respondents argued that as per Section 8(2) of the Election Commission Order, 2002, there is no bar or prohibition to the effect that a matter cannot be heard by a lesser number of members of ECP if the chairman or a member either separates himself from participation or is otherwise on leave. In this case, the ECP chairman was from the same district, so he recused himself from the bench, whereas one member, Roshan Esani, was unwell and could not sit on the bench at the time of the hearing.

The apex court said the mode and procedure to be adopted by the ECP has not been elaborated in the Constitution. It, however, said Section 8 of the Order, 2002, is relevant as sub-section (1) of it provides that all decisions of the ECP shall be expressed in terms of the opinion of the majority of its members, including the chairman, and sub-section (2) thereof provides that no election conducted, or action taken or thing done by the ECP shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.

The court said it is clear from the perusal of these provisions that the ECP comprises five members, but it has nowhere been provided that any decision of the ECP shall be taken by all of its five members.


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