IHC issues notices in response to plea challenging Elections (Amendment) Ordinance

ISLAMABAD: The Islamabad High Court (IHC), Friday, issued notices to the respondents including the Attorney General for Pakistan (AGP) in a petition challenging the Elections (Amendment) Ordinance, 2024 related to the transfer of a matter pending before the Election Tribunal.

A single bench of Chief Justice Aamer Farooq heard the petition moved by the Pakistan Tehreek-e-Insaf (PTI) leader Shoaib Shaheen through Barrister Sajeel Sherhyar Swati and Umair Baloch.

The petitioner challenged vires of section 151 of the Elections Act, 2017 along with Ordinance No5 of 2024 and order dated 04.06.2024 passed by the Election Commission of Pakistan (ECP).

During the hearing, counsel for the petitioner contended that under Section 151 of the Elections Act, 2017, the power has been granted to the ECP to transfer a matter pending before Election Tribunal.

He also contended that on this behalf, it was contended that power is not administrative in nature but quasi-judicial. It was contended that the dispute before the Election Tribunal is of the nature where allegations have been levelled against ECP and it is trite law that no one can be a judge in his own case hence ECP ought not to have the power to transfer.

The counsel submitted that in order to make scheme of law work, it would be appropriate that it should be read in Section 151 that the consultation of the Chief Justice of the respective High Court is mandatory before power of transfer is exercised.

Reference, in this regard, was made on Sh Riazul Haq and another Vs Federation of Pakistan through the Ministry of Law and others (PLD 2013 Supreme Court 501). He further contended that in the scheme of separation of powers, the independence of the judiciary is highlighted and where the judiciary is independent, even though, it is acting as Tribunal and it should not be undermined in any way.

He argued that likewise, through Ordinance No5 of 2024, the amendment has been sought to be made in Section 140 of the Act and it is provided that in the Election Tribunal, even a former judge of the High Court, can be appointed without consent of the Chief Justice of respective High Court, which is against the spirit of independence of judiciary.

In response to the query of the Court, it was contended that no doubt, Tribunal when sits so, does not act as High Court and the matter was settled in case reported as Al-Jehad Trust through Raeesul Mujahideen Habibul Wahabb-ul-Khairi and others Vs Federation of Pakistan (PLD 1996 SC 324), as well as, Mian Jamal Shah Vs. the Member of Election Commission, Government of Pakistan, Lahore and others (PLD 1966 SC 01). It was contended that even otherwise, ECP, in its impugned order, has requisitioned the record of the Election Tribunal, which it could not have done.

The bench issued notices to the respondents saying that since vires of Federal Statute is in question; hence, notice under Order XXVII-A to the Attorney General for Pakistan be also issued.

Later, the bench deferred hearing of the case till June 11 for further proceedings.

Copyright Business Recorder, 2024