livelawpk.com - The ECP has Power u/s 151 of Elections Act, 2017 ---

The ECP has Power u/s 151 of Elections Act, 2017 to Transfer Election Petitions between Election Tribunals --- Islamabad High Court, Islamabad

Islamabad 20-09-2024: The Islamabad High Court (IHC), in a significant ruling, upheld the constitutionality of Section 151 of the Elections Act, 2017, dismissing multiple petitions challenging the Election Commission of Pakistan (ECP)’s authority to transfer election petitions between tribunals.

The judgment, delivered by Mr. Chief Justice Aamer Farooq, addressed legal challenges brought by several petitioners who had contested the 2024 General Elections and later challenged the transfer of their election petitions by the ECP. The core issue revolved around the constitutionality of Section 151, which grants the ECP the power to transfer election petitions between Election Tribunals. The petitioners argued that this provision infringes upon judicial independence by allowing the ECP, an administrative body, to exercise judicial functions.

The petitioners argued that Section 151 violates the constitutional principles of judicial independence, as it permits the ECP to transfer cases without judicial oversight. However, the Court upheld the constitutionality of the provision, stating that the ECP’s authority to transfer petitions is valid as long as it provides sufficient reasons for its decisions. The Court ruled that the power granted to the ECP under Section 151 does not interfere with the judiciary’s autonomy, as the ECP operates within its constitutional mandate.

The petitioners also contested the Elections (Amendment) Ordinance, 2024, which allowed for the appointment of retired Islamabad High Court (IHC) judges as presiding officers of Election Tribunals without consultation with the Mr. Chief Justice Aamer Farooq of the respective Islamabad High Court (IHC). The Court, however, found that this amendment was constitutionally sound and did not violate the independence of the judiciary.

The Court reaffirmed the principle that the ECP’s actions, while administrative in nature, are subject to judicial review under Article 199 of the Constitution if they exceed their jurisdiction or violate statutory provisions. The Court emphasized that the ECP must follow a fair and reasoned process when exercising its authority to transfer election petitions.

The Court clarified that a sitting Islamabad High Court (IHC) judge, when appointed as a presiding officer of an Election Tribunal, acts as persona designata, which means they are not performing their regular judicial functions as a Islamabad High Court (IHC) judge. Instead, they operate as an individual with specific powers conferred by law. As a result, their actions can be reviewed under Article 199.

Addressing allegations of bias against presiding officers of Election Tribunals, the Court held that such allegations must be supported by substantial evidence. In the absence of clear evidence of bias, the ECP’s decision to transfer petitions was upheld as lawful.

After reviewing the arguments and legal precedents, the Islamabad Islamabad High Court (IHC) dismissed the petitions, ruling that the ECP had acted within its authority under Section 151. The Court found that the transfer orders issued by the ECP were justified and legally sound. The petitioners’ challenge to the appointment of retired judges without Mr. Chief Justice Aamer Farooq consultation was also dismissed, as the Court deemed the amendment to Section 140 of the Elections Act to be constitutionally valid.

The judgment relied on several key legal precedents, including:

Lahore Development Authority Ltd. Vs. Ms. Imrana Tiwana (2015 SCMR 1739). Addressing guidelines for determining whether statutory provisions are ultra vires.

Mian Jamal Shah Vs. Member, Election Commission (PLD 1966 SC 1). Establishing the concept of persona designata.

Election Commission of Pakistan Vs. Javaid Hashmi (PLD 1989 SC 396). Discussing the ECP’s powers and the scope of judicial review.

Workers Party Pakistan Vs. Federation of Pakistan (PLD 2012 SC 681). Defining the role and duties of the ECP in electoral matters.

This ruling by the Islamabad High Court (IHC) reaffirms the ECP’s constitutional authority to manage election petitions and emphasizes the importance of adhering to due process in election-related matters. The decision is a significant interpretation of the balance between administrative powers and judicial oversight in the context of Pakistan’s electoral framework.

The Court’s decision ensures that while the ECP retains its administrative powers, these actions remain subject to judicial scrutiny, protecting the constitutional principles of judicial independence and fairness in electoral disputes.