ISLAMABAD: A runner up in Feb 8 election from Islamabad Mohammad Ali Bukhari has challenged a section of Elections Act introduced through an Act of Parliament in 2017 that empowers the Election Commission of Pakistan (ECP) to transfer the Election Petition from one tribunal to another.

Pakistan Tehreek-i-Insaf (PTI) backed independent candidate for NA-48 of Islamabad filed the petition seeking the court declaration against section 151 of the Elections Act, through his counsel advocate Syed Ishfaq Hussain Naqvi.

The petition stated that section 140 of the Act stipulates that the Election Commission is responsible for appointing election tribunals to adjudicate election petitions. Subsection 3 of Section 140 specifically requires the commission to appoint a sitting judge as the election tribunal in consultation with the chief justice of the relevant high court.

However, the petition said section 151 grants the Election Commission the authority to transfer an election petition from one tribunal to another without consulting the Chief Justice.

Section grants ECP powers to transfer election petition from one tribunal to another

According to the petition, the Act is tantamount to undermine the independence of judiciary, as petitions cannot be withdrawn from a tribunal formed in consultation with the chief justice adding that in the event of a section of an enactment conflicting with another provision within the same enactment, the conflicting provision is considered ultra vires, signifying a lack of legal authority, rendering the enactment ineffective to that extent.

Subsequently, the petition requested the court to declare section 151 of the Elections Act as ultra vires to the constitution.

IHC Chief Justice Aamer Farooq is already examining the ECP’s powers to transfer the Election Petitions from one tribunal to another.

The ECP has transferred all the three Election Petitions of PTI’s backed runners up from three constituencies of Islamabad NA-46, NA-47 and NA-48 from the tribunal presided by Justice Tariq Mehmood Jahangiri to another tribunal constituted through the amendment introduced in the Elections Act through Presidential Ordinance.

Mohammad Shuaib Shaheen, Mohammad Ali Bukhari and Amir Mughal filed the Election Petitions and then also challenged the Presidential Ordinance promulgated on May 27, 2024.

IHC CJ Farooq has suspended the ECP’s order and remanded the Election Petitions back to the tribunal presided by Justice Jahangiri.

However, on July 11, Justice Farooq stopped the tribunal from conducting the trial on these Election Petitions CJ Farooq was of the view that since the petitioners have challenged the vires of the Presidential Ordinance that changed the process for the appointment of presiding judge for the Election Tribunal by amending the relevant provision in the Elections Act, therefore, it would be unfair if the matter would decide without hearing either side.

The IHC chief justice will resume hearing by next week.

Published in Dawn, July 21st, 2024