| Case ID |
0be1eaf3-8299-4a98-a18d-94bc54d22b7d |
| Body |
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| Case Number |
I.-C.As. Nos. 843, 851, 852 of 2009 |
| Decision Date |
Nov 25, 2009 |
| Hearing Date |
Nov 11, 2009 |
| Decision |
The court has partially allowed the appeal, directing that the writ petition filed by the Provincial Government is maintainable. The discretionary orders passed by the Honourable Chief Election Commissioner (CEC) are deemed justiciable under the judicial criteria reserved for orders passed by constitutional functionaries. Specifically, the order dated 15-9-2009 by the CEC, which applied the rules of natural justice to the section 103 Representation of the People Act (ROPA) proceedings regarding the NA-55 bye-elections, was found to be invalid as the procedures were not duly followed. Furthermore, for the remaining three bye-elections ordered by the CEC on the same date, the court determined that the materials and views presented by the Provincial Government have yet to be considered by the CEC before announcing a fresh schedule. Consequently, while the appeals challenging the maintainability of the petition and the court's jurisdiction were dismissed, the substantive findings raised by the respondents were upheld, leading to the partial allowance of the appeal. |
| Summary |
In the landmark case titled Umar Ata Bandial and Ijaz Ul Ahsan versus the Government of Punjab through Chief Secretary, Lahore, the Lahore High Court adjudicated on November 25, 2009, addressing critical issues surrounding the conduct and scheduling of bye-elections in the Province of Punjab. The central legal battle involved challenging the discretionary powers of the Chief Election Commissioner (CEC) under the Constitution of Pakistan, 1973, and the Representation of the People Act, 1976, specifically Section 103, which governs the conduct of elections. The petitioners, Muhammad Azhar Siddique and another, sought judicial intervention against the Government of Punjab's actions that interfaced with the autonomous functions of the Election Commission.
A pivotal aspect of the case revolved around the application of natural justice principles, notably the rule of 'audi alteram partem', which mandates that no person should be condemned unheard. The appellants contended that the Provincial Government had undue influence and possibly obstructed the Election Commission's duties by withholding necessary information and failing to provide a date for conducting bye-elections, thereby infringing upon the constitutional mandates for free and fair elections.
The court meticulously examined precedents such as Ardeshir Cowasjee v. Karachi Building Control Authority and Federation of Pakistan v. Ghulam Mustafa Khar to delineate the boundaries of judicial review over the Election Commission's decisions. It was emphasized that while the Election Commission operates with a degree of autonomy, its decisions are not impervious to judicial scrutiny, especially when allegations of mala fides, lack of jurisdiction, or being coram non judice arise.
The judgment underscored that the Election Commission must operate within the confines of established legal frameworks and that any discretionary order, such as the one dated 15-9-2009 by the CEC, must be grounded in substantive material and rational application of mind to merits of the case. The Provincial Government's failure to adhere to procedural norms and its obstructionist stance in the resolution of bye-election schedules were deemed contrary to the constitutional ethos of impartial and just electoral processes.
Furthermore, the court highlighted the significance of legislative provisions in reinforcing the Election Commission's authority, as seen in Sections 11-A of the Representation of the People Act and Article 6 of the Election Commission Order, 2002. These statutes empower the Election Commission to adjust election schedules based on prevailing law and order situations, ensuring that elections are conducted without undue delay or interference.
The decision also touched upon the broader implications of constitutional conventions and their enforceability within Pakistan's legal landscape. While recognizing the potential for established practices between constitutional entities, the court found insufficient evidence to substantiate the existence of a binding convention that would mandate prior hearings or consultations with the Provincial Government before the Election Commission announces an election schedule.
Ultimately, the Lahore High Court rendered a nuanced verdict: it upheld the petition's maintainability and affirmed that the Election Commission's discretionary powers are subject to judicial examination when exercised beyond lawful parameters. The court directed that the Election Commission must duly consider the Provincial Government's submissions before finalizing bye-election schedules, thereby reinforcing the principles of accountability and fairness in electoral administration.
This case serves as a critical reference point for understanding the delicate balance between autonomous governmental bodies and judicial oversight in Pakistan's constitutional framework. It underscores the judiciary's role in safeguarding democratic processes and ensuring that electoral authorities operate within their legally defined limits, transparent and accountable to the law. |
| Court |
Lahore High Court
|
| Entities Involved |
Government of Punjab,
Provincial Government,
Election Commission of Pakistan,
Constitution of Pakistan, 1973,
Chief Secretary, Lahore,
Chief Election Commissioner of Pakistan,
Representation of the People Act, 1976
|
| Judges |
UMAR ATA BANDIAL,
IJAZ UL AHSAN
|
| Lawyers |
Dr. Farooq Hassan,
Shafqat Mahmood Chohan,
Kh. Haris Ahmad,
Mustafa Ramday,
Adnan Tariq,
Raza ul Karim Butt,
Aamir Rehman,
Ch. Shahid Sarwar,
Abdul Rashid Qureshi,
Muhammad Asad Manzoor Butt
|
| Petitioners |
another,
MUHAMMAD AZHAR SIDDIQUE
|
| Respondents |
18 others,
GOVERNMENT OF PUNJAB through Chief Secretary, Lahore
|
| Citations |
2010 SLD 338,
2010 PLD 138
|
| Other Citations |
Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883,
Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 rel.,
Muhammad Shafiq Chaudhry v. The Province of Punjab 1998 SCMR 1957,
Shamim Ahmad v. Deputy Speaker, and others C.P.D.-2599 of 1992,
Election Commission of India v. State of Haryana AIR 1984 SC 1406,
Raheem Shah v. The Chief Election Commissioner of Pakistan PLD 1973 SC 24,
Federation of Pakistan v. Haji Muhammad Saif Ullah Khan PLD 1989 SC 166,
Ghulam Mustafa Jatoi's case 1994 SCMR 1299,
Aftab Shahban Mirani's case 1998 SCMR 1863,
Presidents Reference No.1/1988 PLD 1989 SC 75,
Shamim Ahmad v. Deputy Speaker Sindh Provincial Legislative Assembly and others Constitutional Petition No.D-255 of 1992,
Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161,
Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324,
Constitutional and Administrative Law by Hilaire Barrett (Third Edition),
Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473
|
| Laws Involved |
Constitution of Pakistan, 1973,
Representation of the People Act, 1976
|
| Sections |
213,
209,
215,
210(b),
218(3),
220,
224(4),
199,
225,
58(2)(b),
103
|