Despite the suspension of notification regarding the victory of three MNAs by the Islamabad High Court, the final fate of the alleged election-rigging disputes are likely to be decided by the election tribunals, which is a time-consuming process.
However, the current week is very significant as either the superior judiciary or the Election Commission of Pakistan (ECP) will look into the matter or the matter will be referred to the election tribunals for trial.
The PTI candidates are trying to obtain relief either from the ECP through summary proceedings or the superior courts.
The ECP will take up the PTI candidates’ complaints today (Tuesday) against the issuance of final results without considering the Form-45 results given by the presiding officers.
The IHC division bench led by Justice Miangul Hassan Aurangzeb will resume the hearing on election matters on Wednesday.
The PTI lawyers are hoping for some relief from this bench. However, PTI founder Imran Khan and his wife, Bushra Bibi, mistrust IHC Chief Justice Aamer Farooq.
The PTI has an advantage that some lawyers who contested the elections are aggrieved by the final results. Now, they are approaching every legal forum for relief though they have no support from both the superior bars – Pakistan Bar Council and Supreme Court Bar Association. However, it is being witnessed that the PTI has no one policy to challenge the election results.
A PTI lawyer agreed that the aggrieved candidates should have approached the Supreme Court on this controversy. However, a senior lawyer believes that final adjudication of election disputes by the superior courts will change the settled law and also create grave complications.
He believes that the apex court should give a strict timeline to the election tribunals for final decisions of election petitions. He expressed apprehension that if the superior courts intervene, then every losing candidate will want the same treatment.
The sanctity of ballot is likely to be undermined, he added. However, the PTI lawyer disagreed with the contention, saying that if the SC allows this election fraud, then there will be serious implications on democracy.
This bad precedent of election rigging through issuance of Form-47 will be remembered for decades and it will be misused in the election process every time, he added.
The PTI lawyer also states that adjudication of election tribunal is a time-consuming process. Even if the tribunal de-seats any candidate, then he may get a stay order from the apex court.
There is a need that the SC should form an inquiry commission to probe the allegations of alleged systematic rigging in the elections, he added.
Hafiz Hussain Khokhar advocate has said that the ECP does have jurisdiction under Section 9 read with other provisions relating to all corrupt practices regarding the election matters and can pass any order. However, when the election tribunals have been notified under Section 140 of the Elections Act 2017 for the entertainment and adjudication of election petitions, then no court, including the high courts, can exercise their jurisdiction relating to the election matter of a particular constituency or many constituencies in view of bar contained in Article 225 of the Constitution where it has been described that all election disputes will be decided by tribunals and this legal proposition in such a way has been many times decided by the SC and different high courts through their various judgments.
He also said that generally, the high court declines from interfering in constitutional jurisdiction relating to post-election matters or corrupt election practices, and this has been evident from the recent orders of the high court where all these types of applications filed in writ jurisdiction after this general election were forwarded to the ECP to be decided in accordance with law.
A three-judge bench of the apex court led by Chief Justice of Pakistan Qazi Faez Isa will take up ex-military officer Ali Khan’s petition on Wednesday, which seeks a declaration that the February 8 elections were rigged, urging for a fresh round.
