ISLAMABAD   -  Chief Justice of Pakistan (CJP) Qazi Faez Isa has called the presidential ordinance an insult to the parliament as the Supreme Court rejected the Election Commission of Pakistan’s (ECP) plea to issue a stay order in the election tribunals case.

“[Presidential] ordinance is an insult to the parliament when it has already made a law [on an issue],” the top judge said while hearing ECP’s plea against the constitution of election tribunals by the Lahore High Court (LHC).

He was heading a two-member bench of the apex court while the other judge was Justice Naeem Akhtar Afghan. The court also referred the matter of appointment of election tribunals in Punjab to the committee, set up in terms of SC Practice and Procedure Act, 2023 as the matter involves the interpretation of Articles of the Constitution and the provisions of Election Act, 2017.

The bench also issued notice to Attorney General for Pakistan under the Order XXVII of SC Rules to assist the Court.

During the hearing, the chief justice questioned how the ECP was issuing presidential ordinance and wondered why the electoral body didn’t meet the LHC CJ.

“Nowhere is it written in the Constitution that one cannot meet a judge [...] why is the ECP controversial?” the top judge remarked.

Responding to the chief justice’s comments, Sikandar Bashir Mohmand, representing Election Commission of Pakistan (ECP), said that he didn’t legislate the law on the ordinance and that he wasn’t defending the ordinance at all.

“The ordinance was promulgated in light of the existing burden [of cases] on the judiciary,” the lawyer said.

He also apprised the court that the ECP had written to the LHC under Section 140 of the Elections Act seeking a list of serving and retired judges’ names.

Referring to the CJP’s remarks regarding parliament’s insult, the counsel maintained that he wasn’t representing the federation.

When asked by the CJP whether the LHC’s verdict was in accordance with the law, the counsel answered in the affirmative.

Sikandar Bashir said that the two Civil Miscellaneous Applications (CMA) have been filed for leave appeal arising to common judgment dated 29-05-2024 passed by single judge of the Lahore High Court (LHC) in two writ petition filed by Advocate Salman Akram Raja (Respondent No.1) and Umer Hashim Khan wherein identical prayers have been made. The main prayer made was to who has the power to appoint the judge of Election Tribunal, and whether the Chief Justice of the Lahore High Court (LHC) has primacy in the consultation process.

Sikandar stated that a single judge of LHC interpreted the provision of constitution and the law in light of the Supreme Court judge in Al-Jihad and Riaz ul Haq cases. The LHC judge held that the Election Tribunal are to be appointed by the CJ LHC.

Sikandar submitted that the interpretation does not accord with the Articles 219(c), 222 (d) and its proviso and Article 225 of the constitution and Section 140(1)(3), and 151 of Election Act, 2017. He stated that the constitution grant power to the Election Commission, where such power has to be exercised in consultation with the Chief Justice of the High Court.

Sikandar contended that Al-Jihad Trust case is completely distinguishable and not applicable to the appointment of the Tribunal, adding that this judgment is for the appointment of the judges in the superior judiciary, prior to the 18th Amendment. It is further submitted that writ petitions are not maintainable.

The petitioner Salman Akram Raja told the bench that he would argue the case himself, while Umer Hashim adopted the submission of Salman, adding that his counsel is abroad, but will appear on the next date.

Salman argued that writ petition is maintainable because on 10th March, 2024 only one Tribunal was set up in the Punjab, while six names given 4th April. He contended that the ECP has not complied with its constitutional duty. He said that the judicial power cannot be rested with the ECP. The constitutional body (ECP) is not the judicial forum therefore can’t perform the functions of the courts. Salman told that he is aggrieved, because his case has not been decided yet.

Salman further stated that the Election Commission should have filed the Intra-Court Appeal under Law Reform Ordinance, and instead of filing petition directly before the Supreme Court. He also stated that the matter requires interpretation therefore it should be referred to the Committee set up in terms of Section 4 of the Supreme Court (Practice and Procedure) Act, 2023.

The ECP counsel stated that he has already raised objection to the petition filed by the respondent no. 1 and other as they are not necessary party as the matter pertains to the powers of the ECP and the consultation with the CJ LHC. This is purely legal and constitutional matter, he added.

At the end of the proceeding, Justice Naeem noted that in Khyber Pakhtunkhwa, Balochistan and Sindh the notifications for establishing Tribunals were issued by the Election Commission, but only the CJ LHC issued notification himself. Therefore, the ECP was directed to file record of correspondence and response with Chief Justices of all the High Courts and notifications issued for the establishing the Election Tribunals.

CJP Faez said that if they appreciate the LHC to issue the notification for Tribunals in Punjab then it would affect the Tribunals in other provinces, and have ramifications. The Chief Justice said that after the announcement of election date when he was abroad the LHC had granted stay to hold elections on February 8. He hinted that the incumbent CJ LHC Malik Shehzad Ahmed might take oath as judge of Supreme Court on Monday (June 24).