Observing that the Lahore High Court (LHC) order had derailed the electoral process with a single stroke of the pen, the top court has suspended the operation of the single-bench order that prevented the Election Commission of Pakistan (ECP) from appointing district returning officers (DRO), returning officers (RO) and assistant returning officers (ARO) in the country.
"We have noted that the total number of DROs, ROs, and AROs under the notification is 2,753, whose working has been stopped by the High Court, thereby derailing the process of elections with a stroke of pen," observed the top court as it issued a six-page order to suspend the directive issued by the Lahore High Court earlier in the week which brought the election activities of the ECP to a grinding halt.
The top court subsequently issued a notice to the Attorney General for Pakistan and the Advocate Generals of all the provinces as well as of Islamabad Capital Territory to assist the top court as to whether a writ could be issued against LHC's administrative order, wherein it refused to provide judicial officers for the appointment of DROs, ROs and AROs.
The top court said it will take up the case again immediately after the winter vacations end in early January.
Considering the urgency of the matter, which arose after LHC's order, a three-judge bench headed by Chief Justice Qazi Faez Isa assembled on Friday evening to hear the case.
Justice Sardar Tariq Masood and Justice Mansoor Ali Shah were also members of the bench.
"The High Court also did not appreciate that the officers that have been appointed were to perform functions throughout Pakistan and in passing the
impugned order, it acted well beyond its territorial jurisdiction," the top court observed in its order.
The six-page order, which was authored by Chief Justice of Pakistan Qazi Faez Isa, added: "Further, the very opening words of Article 199 of the Constitution were apparently disregarded by the High Court insofar as availing of the alternate adequate remedy available to the petitioner."
"We are informed that section 55(3) of the Act was such a remedy if respondent No. 1 (Umair Niazi) had a grievance against the conduct of any particular officer."
Election Act 2017
Section 55 (3)
The Commission may, at any time, for reasons to be recorded in writing, suspend or
withdraw any election official, a public servant or any other person in the service of Pakistan who—
(a) obstructs, or prevents, or attempts to obstruct or prevent, the conduct of a fair and impartial poll; or
(b) interferes or attempts to interfere with a voter when he casts his vote; or
(c) influences or attempts to influence in any manner the polling staff or a voter; or
(d) does any other act calculated to influence the result of the election; or
(e) disobeys any order, or avoids to carry out any instruction issued by the Commission or any officer authorized to issue any order or instruction or violates any provision of this Act.
The top court stated that they enquired from the petitioners (the ECP) whether any application or objection was submitted before the ECP under section 55(3) of the Act, that is, availing of the alternate adequate remedy and was told that this was not done.
"The respondent No. 1 is stated to be an office holder of the very same political party, that is, PTI, which was before this court when the said judgment was passed and no such concern was expressed at that time," the top court noted.
The apex court further observed that ordinarily, it does not suspend orders without issuing a notice, but it was making an exception because the order issued by the LHC was in direct conflict with the judgment of this court, wherein February 8 was decided to be the election date.
The top court has further observed that the writ petition before the LHC prima facie appears not maintainable.
"Further, the impugned order also comes in the way of the ECP to proceed with its constitutional duty and responsibility for the holding of the elections as mandated under the Constitution."
The written order further stated that Umair Niazi, the petitioner before LHC, is stated to be a barrister and, as such, expected to be well-conversant with the Constitution and to have read the judgment of the Supreme Court, which had clearly stipulated that ‘no one should be allowed to put forward any pretext to derail democracy’.
"However, one individual appears to have just done that, and it is indeed a matter of considerable regret that he claims to belong to a political party, and we are told that he has served as an Additional Advocate-General, Punjab, when the said political party (PTI) was in government," the top court observed.
"In view of the conduct of the respondent No. 1 (Umair Niazi), we call upon him to submit an explanation why action for contempt of court should not be initiated against him under the Contempt of Court Ordinance, 2003 read with Article 204 of the Constitution," the top court ruled.
The order stated that the DROs, ROs and AROs were appointed as a result of four notifications. One of these notifications pertained to the officers of the ECP, whereas the remaining three notifications pertained to government officers who had already been holding their respective positions and had not been put in place for the purpose of elections or at anyone’s behest.
"Initially, the ECP had, pursuant to sections 50(c) and 51(1) of the Act, written to the Chief Justices of the five High Courts and requested them to provide judicial officers for the upcoming elections and not a single one of the Chief Justices is stated to have agreed to do so."
"In reply thereof, a letter issued by the Lahore High Court specifically stated that no judicial officer can be spared because about 1.3 million cases require adjudication and provision of such judicial officers would result in the increase of pendency of which the ultimate sufferers would be the litigants."
"Under such circumstances, insistence upon the provision of judicial officers to be appointed as DROs, ROs and AROs would effectively mean that a writ has to be issued against the High Court which is not permissible under Article 199(5) of the Constitution."
A five-member bench of the Supreme Court has previously held that against an order passed by the High Court on the administrative side, the remedy lay before the Supreme Court under Article 184(3) of the Constitution.
"Points noted require consideration, therefore, leave to appeal is granted. Notice be issued to the respondent No. 1 and to the Federation of
Pakistan."
Notice under Order XXVIIA of the Code of Civil Procedure, 1908, be also issued to the Attorney-General for Pakistan and all the Advocate- Generals of the Provinces and Islamabad Capital Territory."