Election Tribunal

During pendency of election petition, on application filed by respondent, election petition was transferred from one Tribunal to the other

Petitioner assailed such order of transferas as well as appointment of retired Judges of High Courts as Election Tribunal by the Election Commission of Pakistan

Validity

Proper process was that a request should have been made in such regard to Presiding Officer for recusal from the case and the rest was left to the conscious of Judge, but since Presiding Officer was not Judge of High Court, normal principles was not applicable and "bias" might be a ground

Burden of proof of "bias" was heavy and mere wrong application of law and not granting adjournments or rejection of applications or making certain observations in the Court, was not a ground for "bias"

Election Commission of Pakistan proceeded with transfer application in haste without providing opportunity of filing affidavits and counter-affidavits/replies to allegation of "bias" or misapplication of law

Proper opportunity should have been granted to petitioner and failure on the part of Election Commission of Pakistan to grant such opportunity was in violation of Art. 10A of the Constitution

Election Commission of Pakistan is not a "judicial forum" nor even purely Executive; it is a Constitutional body, which has some quasi-judicial powers to perform while deciding certain issues

Power of transfer is supervisory and administrative in nature and has to be exercised after providing opportunity to everyone concerned

There was 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 was not the mandate of Election Commission of Pakistan

High Court found it appropriate for Election Commission of Pakistan to revisit the matter as it had authority and mandate to decide transfer application under S. 151 of Elections Act, 2017 and could also transfer petitions suo moto but had to give reasons for the same

High Court set aside transfer order passed by Election Commission of Pakistan as in application filed for transfer, all parties were to be heard but this was not done

High Court remanded transfer application to Election Commission of Pakistan for decision afresh.

Proceedings before Election Tribunal are judicial in nature as it determines rights of a party through inquiry, recording of evidence in appropriate cases and to decide election disputes after hearing parties judicially in accordance with law.

Period of limitation for filing election petition before Tribunal shall be computed from the date of publication in the official Gazette of the names of returned candidates.

In the present case, neither the memo of the election petition, nor the application for recount contained any specific allegation of tampering and/or manipulation against the appellant/returned candidate, nor any prima facie material supporting the allegations justifying the request for recount was furnished

Memo only contained generalized allegations of illegal and corrupt practices and rigging/manipulation of the electoral process

Another vague allegation made by the runner-up candidate was that his polling agents were removed from some polling stations for which recount was requested, however, again no details were spelt out

Election Tribunal was persuaded to pass the order for recounting on the basis of the statement of count/form XIV, in respect of some polling stations, where 100% of the votes assigned thereto were purportedly cast and counted and at some polling stations the number of votes cast as recorded in the statement of count/form XIV was more than 100% of the assigned votes

Election Tribunal missed to notice that Presiding Officers had simply committed clerical errors/mistakes with respect to such polling station by recording the incorrect numbers on statement of count/form XIV

Said issue could have been easily resolved by referring to the gazetted list of such polling stations which clearly established that the total number of votes assigned to such polling stations far exceeded the number of votes cast

Material available on record did not provide any justification for the Election Tribunal to order a recount

Judgment of Election Tribunal was set aside and it was held that the appellant was the returned candidate from the constituency.

Appeal under S. 67 of the Representation of the People Act, 1976, against an interlocutory order of the Election Tribunal was not maintainable but the same was liable to be challenged after conclusion of the trial if the ultimate decision went against the party aggrieved of the order

Aggrieved party was thus not left without remedy.

Courts were always 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.

Constitutional petition filed before the High Court against an interim / interlocutory order of the Election Tribunal passed during pendency of election petition

Scope

Interlocutory order passed by the Election Tribunal could not be questioned in constitutional jurisdiction of the High Court until the same was patently illegal and the same for some reason could not even be challenged in appeal under S. 67 of the Representation of the People Act, 1976, filed against final disposal of the election petition

For High Court to intervene in its Constitutional jurisdiction in an interlocutory order of the Election Tribunal, the order must not only be patently illegal but if not struck down would leave the aggrieved party without remedy

Where the outcome of an election petition went against a party which was also aggrieved of an interlocutory order passed during the proceedings, besides impugning the main judgment, he was entitled to assail the very legality of the (interim) order, apart from the consequences that flowed from it

Interlocutory orders of the Election Tribunal were not liable to be set aside by the High Court in its constitutional jurisdiction, if the aggrieved party had a remedy available to it by way of appeal under S. 67 of the Representation of the People Act, 1976, after disposal of the election petition.

Person aggrieved should wait for the final decision of Election Tribunal and such decision could then be assailed, if so required by any of the party, before the Supreme Court.

Challenging decision of an Election Tribunal before the High Court under Art. 199 of the Constitution would make S.67(3) of the Representation of the People Act, 1976 redundant to some extent as the parties in such situation would have to file petition for leave to appeal instead of direct appeal before the Supreme Court, which was not the intention of the legislature

When a mechanism had been provided for the decision of disputes arising out of elections, it could not be permitted to be bypassed through constitutional jurisdiction of the High Court

High Court could only exercise jurisdiction under Art. 199 of the Constitution (exceptionally) when the order of Election Tribunal was illegal and aggrieved person became remediless and the candidate had been disqualified and disfranchised

Only in extraordinary circumstances would the High Court deviate from the general sanctified rule.

Even if the Election Tribunal made a wrong decision either of facts or law at an intermediate stage, it could not be corrected in constitutional jurisdiction of the High Court under Art. 199 of the Constitution by exercising the power of appellate authority

High Court could not sit in appeal over the decision/order of the Election Tribunal or statutory authorities and substitute their decision with its own

Where there was effective alternate remedy under the statute, High Court would not exercise its (Constitutional) jurisdiction and decline to interfere in elections matters, especially at the intermediate stage

If the High Court exercised jurisdiction under Art. 199 of the Constitution to interfere with the interlocutory order of the Election Tribunal, then it would be encroaching upon the rights of aggrieved person to approach the Supreme Court through a direct appeal

Representation of the People Act, 1976, which excluded a right of appeal from the interim orders of the Election Tribunal, could not be bypassed by bringing under attack such interim orders in Constitutional jurisdiction of the High Court

Party affected had to wait till a final decision of the Election Tribunal and then it could challenge the same in the proper exclusive forum, that is, the Supreme Court.

Timely decisions were not being taken by the Election Tribunals; because, inter alia, Election Tribunals were ordinarily presided by Judges of the High Courts who remain unable to conclude matters expeditiously on account of their other judicial commitments, or because of delaying tactics employed by respondents who, having been declared as returned candidates, enjoyed the status of Members of the National or Provincial Assemblies

Such delays in disposal of election petitions before the Tribunal in fact deprived a large number of electors of the constituency to have their due representation in the elected Houses, particularly in those matters where a whole term had been enjoyed by a winning candidate, who may later turn out to be disqualified on any count

Such delay caused the people of constituency to be represented by a person who was not duly elected, which clearly negated the principle of a democratic system of Government

Wisdom existed in fixing the period for decision of such cases, namely, that there should be no uncertainty for the persons, who had been elected or who had challenged the election before the Tribunal or the Court and after expeditious disposal of the same and such persons should consume all their energies for the welfare of the people whom they represent, instead of wasting time in pursuing such matters before the Courts

Mandatory requirement of the Representation of the People Act, 1976 was that the Election Tribunal shall proceed with the trial of the election petition on a day-to-day basis and the decision thereof shall be taken within four months from its receipt as provided under S.67(1A) of the Act

Legal duty had, therefore, been cast upon the Election Tribunal to reach a conclusion expeditiously by following stringent/coercive measures of imposing a cost and assigning the reasons if cases were adjourned by the Tribunal and to such end, the Tribunal was even empowered to declare that a returned candidate who was delaying the proceedings of the Tribunal; ceased to be a member of the Parliament/Provincial Assembly, either till the conclusion of the proceedings or for such period as the Tribunal may direct

Provisions of S.67(1A) of the Representation of the People Act, 1976 were therefore mandatory in nature and entailed penal consequences for non-compliance.

Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices

Election Tribunal

Delay in disposal of election petitions

Section 67(1A) of the Representation of the People Act, 1976, mandated that an Election Tribunal must adjudicate a petition within three (3) months, but said provision in the observation of the Supreme Court was violated more often than not, therefore, there was a need to adhere to the procedure laid down for resolving election disputes expeditiously and ensure completion of whole process including appeals within 120 days

Supreme Court further observed that corrective measures were required to be taken by the Election Commission to ensure that the election disputes were resolved at the earliest, and that the Election Commission might also consider establishing a panel of lawyers well conversant with election laws at the State expense to provide free legal services to the marginalized segments of society and take other steps it considered appropriate.

In relation to an election dispute of a Provincial Bar Council, the Chief Justice of concerned High Court has to nominate a Judge of, High Court as an Election Tribunal

As the Tribunal has been assigned jurisdiction to hear election dispute, therefore, after announcement of election schedule, every dispute arising out of election of that period is triable by the Election Tribunal

At any time, either after announcement of an election schedule or the moment an election petition is received in accordance with Rule 61 of Pakistan Legal Practitioners an4 Bar Councils Rules, 1976, the Chief Justice has to constitute a Tribunal accordingly, however, in case the Tribunal is not constituted, concerned Bar Council can request the Chief Justice for needful to be done

In Pakistan Legal Practitioners and Bar Councils Act, 1973 or Legal Practitioners and Bar Councils Rules, 1976, no request of a Bar Council is required for constitution of an Election Tribunal.

Respondent was declared as returned candidate and petitioner assailed his election on the ground that his certificates of matriculation and intermediate were bogus and result of impersonation

Plea raised by petitioner was that after declaring respondent, as disqualified, he be declared as returned candidate

Validity

When Intermediate certificate issued by the Board was result of impersonation then automatically Bachelor degree held by respondent had lost its value also

As the respondent obtained Intermediate certificate through impersonation, so he was disqualified to contest election

Declaration of petitioner to be elected candidate would mean that in fact voters who cast their votes in favour of respondent would be deprived of their right of representation in Provincial Assembly for no fault of them, since they did not know that respondent was not qualified to contest election

Election Tribunal directed Election Commission to conduct re-election in accordance with law

Petition was allowed accordingly.

Ss. 21 & 53 read with Constitution of Pakistan (1962), Art. 158 and Electoral College Rules, 1964, r. 36(1-A)-Election petition-Election Tribunal-Jurisdiction-Requirement of Art. 15s, Constitution of Pakistan (1962), regarding qualifications of electors-Must be read into Electoral College. Act, 1964-Failure to comply with such provision attracts operation of r. 36(1-A), Electoral College Rules, 1961-Election Tribunal competent to consider and decide whether returned candidate was qualified to be elected as Elector (objection being as to his age)-[Per Salahuddin Ahmed and A. H. Khan, JJ., Abu Md. Abdulla, J. contra].

Appointment effective not from date of notification but from date of publication in official Gazette-Notification dated 9-7-65 but published on 26-3-66-Trial and disposal of election case by Tribunal so appointed prior to 26-3-66-Without jurisdiction.

Election Tribunal-Not empowered to raise an issue suo motu between parties to election petition-Power not as wide as that of a Civil Court-Punjab Legislative Assembly Electoral Rules, 1950, Part E, r. 12-Civil Procedure Code (V of 1908), O. XI V, r. 5.