IHC overturns ECP order on tribunals

Court stresses need for adherence to procedure

ISLAMABAD:

The capital's high court has set aside the country's polls oversight authority's decision to shift some election petitions related to alleged rigging in the February 8 general elections at three constituencies in Islamabad from on election tribunal to another.

A single-member bench comprising Islamabad High Court (IHC) Chief Justice Aamer Farooq on Thursday unveiled an order he had reserved on July 30 while hearing petitions filed by PTI's Shoaib Shaheen, Aamir Mughal, and Ali Bukhari.

Shaheen, Bukhari and Mughal had lost the February 8 general elections on the National Assembly seats from Islamabad to the candidates from the PML-N. They had challenged the victories of their opponents in a tribunal led by IHC's Justice Tariq Mehmood Jahangiri.

However, the Election Commission of Pakistan (ECP)—while hearing some complaints filed by the returned candidates from the PML-N—transferred the PTI candidates' petitions to a tribunal headed by a retired judge, Abdul Shakoor Paracha. This new tribunal was formed after the Elections Act, 2017 was amended through a presidential ordinance—the Election Act (Amendment) Ordinance, 2024.

The PTI leaders challenged the ECP order in the IHC, requesting it to set aside the ECP's decision to transfer their pleas to another tribunal.

The IHC on June 24 suspended the ECP order to change the Islamabad Election Tribunal and reinstated the tribunal comprising Justice Jahangiri. The bench reserved its order on the petition on July 30.

Unveiling a 44-page verdict on Thursday, the IHC dismissed the PTI candidates claim that the ECP does not have the authority to transfer election petitions from one tribunal to another. However, it noted that the commission did not transfer the PTI members petition after following the procedure.

The verdict said that the ECP seems to have proceeded with the transfer application in haste without providing opportunity of filing affidavits and counter-affidavits/replies to the allegation of bias or misapplication of law.

"Proper opportunity should have been granted to the petitioners; failure on part of the ECP to grant such opportunity to present the case, apparently is in violation of Article 10-A of the Constitution."

The IHC noted that the ECP is not a judicial forum; it is not even purely executive authority rather it is a constitutional body, which has some quasi-judicial powers to perform while deciding certain issues.

"The power of transfer is supervisory and administrative in nature and has to be exercised after providing opportunity to everyone concerned. There is nothing on record to show that the same was done and in one of the writ petitions, while allowing the transfer application, even merits were touched and finding on the same was rendered, which is surely not the mandate of ECP.

"In such view of the matter, it is only appropriate that the ECP revisits the matter because it does have the authority and mandate to decide transfer application under section 151 and also can transfer petitions suo moto but has to give reasons for the same.

"However, where the application has been filed for transfer, naturally all parties are to be heard, which in the instant case, was not done as such, in a proper manner, hence the impugned orders are not sustainable and merit setting aside," it added.