A larger bench of the newly established Federal Constitutional Court (FCC) is scheduled to take up on Tuesday a petition filed by PTI’s Salman Akram Raja, who has sought the reversal of a court order on elections tribunals, which were formed to settle disputes of last year’s general elections.
According to a supplementary cause list on the FCC’s website, Chief Justice Aminuddin Khan has constituted a five-member bench comprising Justices Aamer Farooq, Ali Baqar Najafi, Muhammad Karim Khan Agha, Rozi Khan Barrech and Arshad Hussain Shah to hear the petition that was originally filed in the Supreme Court (SC) on July 22, 2024.
However, the review petition has now been fixed before the FCC, which was established under the 27th Amendment, on November 24.
In his petition, Raja requested the SC to revisit its earlier order suspending the Lahore High Court’s (LHC) notification of constituting eight election tribunals in Punjab.
He pleaded before the court that its order on July 4, 2024 had exposed the entire process of adjudication of election disputes in Punjab to the whims and arbitrary desires of the Election Commission of Pakistan (ECP).
On July 4, 2024, a five-judge SC bench, headed by then-chief Justice of Pakistan Qazi Faez Isa, had also ordered a meaningful consultation between LHC Chief Justice Aalia Neelum and Chief Election Commissioner Sikandar Sultan Raja for the formation of the tribunals.
The review petition pleaded that without providing any guidance with respect to the meaning and scope of the term “consultation” as used in Section 140(3) of the Elections Act, 2017, the LHC chief justice was directed by the SC to engage in consultation with the ECP.
The scope of the word “consultation” had been elaborately defined by the SC in the 1996 Al-Jehad Trust case and the same interpretation had been consistently followed in all matters pertaining to judicial appointments, it argued.
The petition contended that the view of the high court CJ with respect to the suitability of a particular person’s appointment as judge of any court should be granted the highest regard and consideration.
It said the LHC judgement had correctly held that the names of judges of the high court provided by the chief justice through a letter on April 4, 2024 may not be departed by the ECP as a matter of right or arbitrary discretion.
The view adopted by the ECP that it was entitled to disregard any name provided by the LHC chief justice without assigning any reasons had been held to be without any lawful basis, the review petition said.
Raja argued that during the hearing before the Supreme Court, two of the members on the bench were very clear in their rejection of the ECP’s claim that it was entitled to receive panels of names from the LHC chief justice for it to choose judges for appointment to the election tribunals in its discretion.
Justice Jamal Khan Mandokhail had clearly asked the ECP counsel to identify the basis in the text of the Elections Act or anywhere else in the law or in the Constitution for the contention that the ECP was to be provided panels of judges for each election tribunal to be appointed so that the commission could choose one of the judges for appointment.
“No answer to this query could be provided by the counsel for ECP,” the petition said, adding that in the law, there was no basis for the ECP demanding a panel of judges for each election tribunal so that it might reject some or all contained in the panel provided by the high court chief justice.
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