Chief Justice of Pakistan (CJP) Qazi Faez Isa has dubbed the presidential ordinance an insult to parliament.
"[Presidential] ordinance is an insult to the parliament when it has already made a law [on an issue]," the chief justice remarked while hearing the Election Commission of Pakistan's (ECP) petition against the Lahore High Court's establishment of election tribunals.
An appeal filed by the Election Commission of Pakistan (ECP) in the Supreme Court against the Lahore High Court (LHC) establishing eight election tribunals has been transferred to the three-judge committee for fixation before a larger bench.
The appeal was shifted to the three-judge committee since the matter pertains to interpreting constitutional merits. The three-judge committee, headed by Chief Justice Qazi Faez Isa and comprising Justice Mansoor Ali Shah and Justice Muneeb Akhtar, will now mutually decide which judges will be included in the larger bench that will hear the case.
The matter has implications for the country's politics, as most of the Pakistan Tehreek-e-Insaf (PTI)-backed independent candidates were aggrieved in the February 2024 elections and had raised their cases before the election tribunals.
The argument that the ECP should have filed an intra-court appeal in the LHC against the verdict of a single-judge bench has seemingly become infructuous after the top court heard the ECP's appeal. A two-judge bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Naeem Afghan, took up ECP's appeal against the LHC verdict and referred the matter to the three-judge committee of the top court. A larger bench is now expected to adjudicate the question of jurisdiction of election tribunals in the Constitution.
During Thursday's hearing, the two-member bench was clear that the ECP, being a constitutional body, has the upper hand in appointing election tribunals. However, lawyers of PTI candidates and other aggrieved members attempted to pass on the perception that the chief justice and the ECP were on the same page.
They expressed the belief that the chief justice was treating this matter according to the Constitution's touchstone, but he did not do so when adjudicating on the intra-party elections, where the case related to PTI's iconic bat electoral symbol was dealt with on procedural length.
During Thursday's hearing, the court questioned the necessity of promulgating ordinances.
Chief Justice Isa termed presidential ordinances an insult to the Parliament. He went on to question how the ECP could issue a presidential ordinance and further wondered why the ECP did not consult the LHC's chief justice on forming tribunals.
He added that nowhere in the Constitution was it written that one cannot meet a judge, and he asked why a meeting of the ECP with a judge should become controversial.
ECP's lawyer, Sikandar Bashir Mohmand, argued that he did not have a role in legislating the law or the ordinance and has not appeared before the court to defend the ordinance.
"The ordinance was promulgated in light of the existing burden [of cases] on the judiciary," the lawyer said.
He also informed the court that the ECP had written to the LHC under Section 140 of the Election Act seeking names of serving and retired judges.
During the hearing, Barrister Salman Akram Raja from the PTI informed the court that the ordinance in question had been challenged before the Islamabad High Court (IHC) and the LHC.
The chief justice questioned why it had been challenged in different high courts as the ordinance would be enforced throughout the country.
"We cannot issue a notice as the ordinance hasn't been challenged in the SC," the top judge remarked.
The chief justice further remarked that the issue pertaining to Form 45s is currently pending before an election tribunal, and the apex court will review the relevant law if the issue eventually comes before them.
During the hearing, Justice Afghan remarked that the Election Commission established election tribunals in Khyber Pakhtunkhwa. He further observed that when he was the chief justice of the Balochistan High Court (BHC), he held that the establishment of election tribunals was the authority of the ECP.
Later, the top court refused to grant a stay on LHC's verdict. The court, however, sought details of procedures adopted for establishing election tribunals in the high courts of Sindh and Balochistan.
The court has also issued a notice to the Attorney General for Pakistan.
The court also accepted pleas filed by nine PTI candidates and issued notices.
Earlier, the ECP had moved the apex court under Article 185(3) of the Constitution against a verdict issued by a single-member bench of the LHC on May 29, in which it had constituted eight election tribunals.
The order by an LHC bench comprising LHC Chief Justice Malik Shahzad Ahmad provisioned that Justice Shahid Karim, Justice Chaudhry Muhammad Iqbal, Justice Anwaar Hussain, and Justice Sultan Tanvir Ahmad would hear election petitions at the LHC principal seat in Lahore. Whereas Justice Asim Hafeez will hear the election petitions at the LHC Bahawalpur bench, Justice Sardar Muhammad Sarfraz Dogar and Justice Raheel Kamran will hear the election petitions at the LHC Multan bench, and Justice Mirza Viqas Rauf will hear the election petitions at the LHC Rawalpindi bench.
The order, which came in response to petitions filed by Rao Hashim Omar Khan and others, had also ordered the ECP to appoint an additional six judges, nominated by the LHC chief justice, to head election tribunals.
It is pertinent to mention here that two of the eight election tribunals the LHC had directed to be set up were already working in Punjab.
The ECP argues that under Article 219, read with Article 222(b) of the Constitution, the power to appoint the election tribunals was vested in the electoral body.
In its appeal before the top court, the ECP further argued that Article 219 of the Constitution did not expressly require the body to consult the relevant high court's chief justice when appointing election tribunals or allocating territorial jurisdiction to such election tribunals.
Section 140(3) of the Elections Act 2017 only required consultation with the chief justice of the high court concerned on the appointment of sitting high court judges as election tribunals, but this consultation did not cover the allocation of territorial jurisdiction to the election tribunals which was the sole power and prerogative of the Election Commission, as was evident from Section 140(1) read with Section 151 of the Elections Act 2017, the petition stated.