Matter of jurisdiction: High courts can’t set aside election tribunal’s interim order, says SC

Says intervention in interim order during the process of election will unduly delay completion of election

ISLAMABAD:

The apex court has declared that the high courts, while exercising their constitutional jurisdiction, cannot set aside interlocutory (interim) orders passed by an election tribunal (ET) while hearing election petitions.

“The  interlocutory orders  passed by the Election Tribunal impugned before the High  Court were not  liable  to  be set aside  in  its  constitutional jurisdiction as the petitioners before  the  Court had  a remedy  available to them  by way of appeal   under  Section   67   of  the   Act   after   disposal   of  the   election petitions,” said 28-page judgment, delivered by Supreme Court’s three-judge bench, headed by Chief Justice Nasirul Mulk.

The bench on October 28 reserved the judgment over five questions after hearing the arguments of the attorneys for different parties.

The judgment said courts have always been mindful of the need for election process to be completed expeditiously and without hindrance, including the trial of election petitions arising out of the election.

“In the case of  Javaid Hashmi (supra) while  giving  a wide  meaning to the  term ‘election’, the  Court also  noted  that the  intervention by  the  Court’s interlocutory order  during the  process  of election  would  unduly  delay the completion of the election,” it said.

The court observed that three high courts – Lahore,  Sindh and Balochistain – had already declared that interlocutory orders passed by the election tribunal are not liable to be challenged before the high court in its constitutional jurisdiction.

“There is no dispute that the case law developed so far is on the High  Courts’ jurisdiction to interfere at intermediary stage during election process before its conclusion. The question of high courts’ power to intervene in interlocutory orders passed by Election Tribunals during pendency of election petitions has  squarely come before this Court for the first time”

The court says the underlying principle laid down in the judgments cited at the bar and discussed in the three judgments of the high  courts are relevant and provide  a base on which to proceed with the resolution of the controversy in the appeals.

Published in The Express Tribune, December 19^th, 2014.