Election Commission of Pakistan thr. its Secretary, Islamabad Versus Dawood

Civil Petition No.4522 of 2023, decided on 2nd January, 2024.

Result: Petition Converted into Appeal and Allowed.

Summary

The Election Commission of Pakistan (ECP) challenged an ad-interim ex-parte order of the Peshawar High Court, which had suspended an ECP notification replacing a Returning Officer. The ECP contended that the replacement was necessitated by the officer's ill health and was a valid exercise of administrative discretion. The respondents failed to demonstrate any grievance or legal basis for challenging the appointment. The Supreme Court observed that the High Court's ex-parte order, issued without notice to the ECP, disrupted the election schedule and jeopardized the electoral process. The Court held that the ECP acted within its authority for justifiable reasons and that no allegations were leveled against the newly appointed officer. Consequently, the Supreme Court set aside the High Court's order, dismissed the underlying writ petition, and directed that the scrutiny of nomination papers proceed according to a revised schedule to ensure the integrity of the election process. The judgment emphasizes that courts should exercise caution in passing ex-parte orders that interfere with the constitutional mandate of the ECP to conduct elections.

Questions settled in this judgment

Can a High Court pass an ad-interim ex-parte order suspending an Election Commission of Pakistan notification regarding the appointment of a Returning Officer without notice?
Does the Election Commission of Pakistan have the authority to replace a Returning Officer on medical grounds?
Is the exercise of administrative discretion by the Election Commission of Pakistan in appointing election staff subject to judicial interference absent allegations of illegality?

Election Commission of PakistanReturning OfficerElection scheduleEx-parte orderAdministrative discretionScrutiny of nomination papers

ORDER

Qazi Faez Isa, CJ. The Election Commission of Pakistan ('ECP') has filed this petition against an ad- interim ex-parte order of the Peshawar High Court dated 27 December 2023, whereby a learned single Judge had suspended the notification dated 25 December 2023 of the ECP through which the returning officer of a constituency was changed. It is submitted that the returning officer was changed on medical ground and on his own request, and referred to the attached medical certificate and the application of the said returning officer requesting that in view of his ill health he cannot undertake the assigned responsibilities. Accordingly, it is submitted that for justifiable reason, the ECP had changed the returning officer.

2.The respondents No.1 and 2 have entered appearance through learned Syed Sikandar Hayat Shah. We enquired from learned counsel as to why the said respondents had filed the petition before the High Court assailing the change of the returning officer and how were they aggrieved with the change of the returning officer, but did not receive any satisfactory answer from him. He however stated that scrutiny of the said respondents' nomination papers has not taken place.

3.Learned Mr. Afnan Karim Kundi representing the ECP states that it is on account of their own acts that the scrutiny of nomination papers, scheduled to take place on 28 December 2023, could not take place because the said respondents had the notification suspended on 27 December 2023 and there was no returning officer to scrutinize the nomination papers. He however submits that if the impugned order is set aside, the ECP shall ensure that the scrutiny of nomination papers of the said respondents and the other candidates, whose scrutiny of nomination papers in respect of the Provincial constituency (PK-91 Kohat-II) that could not take place on account of the ad-interim ex - parte order will be undertaken as per the following schedule:

PK-91 KOHAT-II

SL.

NO.EVENTS NOTIFIED

DATEREVISED

DATE

4.Last date for Scrutiny of nomination papers by the Returning Officer25.12.2023 to 30.12.202305.01.2024

5.Last date for filing of appeals against decisions of the Retuning

Officer rejecting/accepting the nomination papers.03.01.2024 09.01.2024

6.Last date for deciding of appeals by the Appellate Tribunal10.01.2024 16.01.2024

7.Publication of revised list of candidates11.01.2024 17.01.2024

8.Last date for withdrawal of candidature and publication of revised list of candidates12.01.2024 18.01.2024

9.Allotment of election symbols to contesting candidates13.0.2024 19.01.2024

4. We are satisfied that the ECP, for justifiable reasons, had issued the notification substituting the returning officer. It is also the responsibility of the ECP to conduct elections. Moreover, no allegation against the newly appointed returning officer was made. Therefore, it cannot be stated that the exercise of discretion by the ECP was in any manner illegal or unconstitutional. It is also of concern that an ad-interim ex-parte order was passed by the learned Judge of the High Court without issuance of notice to or hearing the ECP; which would adversely affect the election programme and jeopardise the elections to be held in the said constituency.

5. Under the circumstances, we set aside the impugned order dated 27 December 2023 by converting this petition into an appeal and allowing the same and by dismissing Writ Petition No.6194 P/2023 filed in the Peshawar High Court. However, since the stipulated date for the scrutiny of nomination papers of candidates could not be completed on account of the said ad-interim ex- parte order, we direct that the scrutiny of the nomination papers of candidates, including the said respondents, whose scrutiny of nomination papers has not taken place be undertaken as per the given fresh schedule reproduced above.

6. This petition is converted into an appeal and allowed in the said terms.

Judges on this bench

Muhammad Ali Mazhar1,594 judgments
Musarrat Hilali351 judgments
Qazi Faez Isa (C.J)94 judgments