Crucial matters : CJ Isa leading benches in all poll cases

ISLAMABAD:

Three Supreme Court benches are right now adjudicating three crucial election cases—all involving the PTI—which may have far reaching implications for national politics.

Interestingly all these benches are led by Chief Justice of Pakistan (CJ) Qazi Faez Isa who has had a strained relationship with the PTI, which, during its rule, had filed a presidential reference against him.

The first case is related to allocation of reserved seats to the Sunni Ittehad Council (SIC), a party which PTI backed independent lawmakers joined after announcement of the official results of the February 8 general elections. A full court is nearing the end of its proceedings.

The SIC will stay an opposition party even if it gets 78 reserved seats in the national and provincial legislature. However, if the SC allocates the same seats to the ruling alliance, then the government will achieve two-thirds majority in the National Assembly, enabling it to make constitutional amendments.

There is a debate as to why the full court has not yet completed its proceedings. There is division within the bench on the question of allocation of reserved seats. The bench will resume hearing next week, on Tuesday.

Likewise, a five-member special bench led by CJ Isa and comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Naeem Akhtar Afghan and Justice Aqeel Ahmed Abbasi will take up today (Thursday) a petition filed by the Election Commission of Pakistan’s (ECP) challenging the Lahore High Court’s (LHC) decision regarding the nomination of elections tribunals by the LHC chief justice.

The composition of the larger bench is very interesting. Three judges belong to the province of Balochistan while one each from Punjab and Sindh will hear the ECP petition.

The minutes of the June 27 meeting of the three-member SC committee formed under the Supreme Court Practice and Procedure Act, 2023 does not reveal the details as to how the members evolved a consensus regarding formation of the special bench.

The judges who have been questioning the ECP’s conduct in the reserved seats case are not included in the special bench. The term “like-minded judges” which was frequently used during former CJ Umar Ata Bandial’s tenure, is still relevant. Although, now a three-member SC committee forms SC benches.

It will be interesting to see whether there will be any dissent in the bench hearing the ECP petition today. Some senior lawyers believe that this case is related to the independence of the judiciary. There are serious questions on the ECP’s conduct in holding the February 8 general elections.

Rawalpindi former commissioner Liaqat Chatta’s press conference about election rigging is on the record. PTI leader Salman Akram Raja is the respondent in this case. The third case is related to the ECP’s power to order recounting of votes after notification of a returned candidate. This significant case is also being heard by a three-member bench led by CJP Isa, which will resume hearing of the matter on Monday.

The matter has arisen out of the ECP orders for vote recounting passed in pursuance of its power under Section 95(6) of the Election Act, 2017.

The LHC had rejected an ECP order to declare PML-N’s Abdul Rahman Kanju a returned candidate at Lodhran’s NA-154 constituency after a recount. Supreme Court Bar Association (SCBA) President Shahzad Shaukat is appearing on behalf of petitioner Kanju.

A PTI lawyer while talking to The Express Tribune said the decisions on these petitions will have great significance as they have the potential to change the composition of seats in the National Assembly as in the case of an adverse decision, the PTI-SIC may lose a large number of seats.

He said the power of recounting under the new law of 2017, unlike the old law, is circumscribed by conditions. An application for recounting has to be filed before the returning officer prior to the commencement of consolidation proceedings and before the Commission before the conclusion of those proceedings. The law as amended in 2023 also added two more limitations.

The applicant must be filed by a runner-up and the difference in the margin of victory is less than five percent of the total votes or rejected votes are more than the margin of victory.

Even if these conditions are met an application for recounting is to be filed before the consolidation of results for the reason that polling material is still not sealed and stored.

Upon the issuance of forms 45 & 47 (provisional results) there is a presumption in favour of a returned candidate and therefore the law on recounting as settled by the Supreme Court in several of its judgements is that recounting is not to be ordered as a matter of course as there is a greater likelihood that the election material may be manipulated and result changed.

Invariably, as a result of recounting, during the present elections, results announced as per forms 45-47 & 49 stood changed in favour of runners-up. The PTI lawyer said a strange pattern was noticed.

The rejected/invalid votes increased and as a consequence thereof the votes of the winners stood diluted. The method of double stamping was common in all these cases. In one Balochistan case, the ECP ordered recounting in favour of a candidate who was not even a runner-up, he added.

Unbridled and unstructured administrative power of the ECP or the ROs of recounting after the provisional results are announced has seriously undermined the fairness of already clouded elections.

Hamid Khan is appearing on behalf of the PTI lawmaker in this case. PTI lawyer Abuzar Salman Niazi believes that CJ Isa should not hear the PTI related cases.

“Bias is floating on record against Imran Khan and the PTI. So for proper, fair and impartial adjudication of cases involving Imran Khan, the PTI-SIC, CJ Qazi Faez must recuse himself and not hear their matters”, he added.