Why Pakistan's election disputes have a three-body problem

In a unanimous decision, Pakistan’s apex court nullified on Monday the election tribunals established by a high court order to address complaints related to the provincial and National Assembly elections held on February 8.

The decision came on a plea of the country’s electoral watchdog that had sought a nullification of the order. The Election Commission of Pakistan (ECP) had challenged the Lahore High Court's decision, asserting that only the electoral body held the authority to establish election tribunals.

The decision was reserved on September 24 and was announced by the bench yesterday.

In the 5-0 decision, the Supreme Court’s bench led by Chief Justice Qazi Faez Isa and comprising justices Amin-ud-Din Khan, Jamal Khan Mandokhel, Naeem Akhtar Afghan, and Aqeel Ahmed Abbasi, declared the LHC's ruling "null and void".

In its verdict, the top court stated that the LHC’s single-member bench did not consider a lack of consultation between the LHC chief justice and the chief election commissioner before making its decision.

The court emphasized that the high court's judgment could not be treated as a judicial precedent, highlighting the need for caution when dealing with constitutional bodies such as the ECP.

The verdict also included an additional note from justices Mandokhel and Abbasi, further elaborating on the matter.

Legal status of election petitions seven months on

Former Attorney General of Pakistan, Ashtar Ausaf, told Nukta that high court judges have numerous responsibilities, and retired judges are also unable to address such matters effectively.

He emphasized that these are time-sensitive issues that should be resolved through specialized federal constitutional courts. Ausaf noted that the law has become like a wax nose, easily molded and altered to suit individual preferences. He urged for a solid and reliable solution to be devised, calling on all political parties to come together to resolve this issue.

Discussing the legal intricacies, senior advocate Ahmed Awais told Nukta that the involvement of major political figures - including former prime minister and president of the ruling party, the Pakistan Muslim League-Nawaz (PML-N), Nawaz Sharif and his daughter, Punjab Chief Minister Maryam Nawaz - has contributed to the delay in resolving these cases through the courts.

He claimed that these individuals have extensive political networks and connections. "Given the unprecedented rigging witnessed in the 2024 general elections, there is a pressing need to hold re-elections in Pakistan," he said.

Awais explained that, according to the election law, election tribunals must address disputes as swiftly as possible. Ideally within six months of the election. "Unfortunately, seven months have passed since the election, and we're still at square one. Following the court's decision, new benches will be formed, but objections are likely to be raised against these as well," he added.

The tribunal, ECP and IHC

The dispute began when the ECP, on February 14, requested a panel of serving judges from the LHC to form election tribunals. In response, the then-LHC Chief Justice nominated two judges on February 20, followed by an additional six judges on April 14.

On April 26, the ECP notified two of the nominated judges for Rawalpindi and Bahawalpur election tribunals but later sought more judges, a request the LHC chief justice declined.

Subsequently, on May 29, Justice Shahid Karim of the LHC ordered the ECP to appoint six more judges, nominated by the LHC CJ, as election tribunal members, warning that the court would consider the appointments made in case of the ECP's non-compliance.

The ECP resisted the order, stating that appointing judges solely nominated by the LHC CJ, without consultation, would violate Section 140(3) of the Elections Act. Despite this, the LHC’s Justice Malik Shahzad Ahmad formed six additional tribunals for the upcoming elections, on top of the two already operational.

The matter was taken to the Supreme Court, which on July 4 suspended both the LHC's decision and the ECP's April 26 notification, pending further review.

With the latest ruling, the Supreme Court has reaffirmed the ECP’s authority over the formation of election tribunals, settling the matter in favor of the electoral body.

Number of tribunals, and pending petitions

According to a post-general election 2024 report by the Free and Fair Election Network (FAFEN) - an NGO dedicated to promoting free and fair elections - a total of 377 petitions were filed across 23 election tribunals. However, FAFEN was only able to obtain certified copies of 176 petitions.

The data provides an overview of the petitions filed with tribunals and the number of certified copies obtained in response to formal requests. Of the 176 petitions acquired by FAFEN, 43 were from Punjab tribunals, 58 from Sindh, 40 from Khyber Pakhtunkhwa (KP), 32 from Balochistan, and three from the Islamabad Capital Territory (ICT).

Among these petitions, 50 challenge the outcomes of National Assembly constituencies. These include 13 in Punjab, 18 in Sindh, nine in KP, seven in Balochistan, and three in ICT. Additionally, 121 petitions contest the results of provincial assembly constituencies - 30 in Punjab, 35 in Sindh, 31 in KP, and 25 in Balochistan.

The report highlights that a significant portion of the 171 petitions come from candidates affiliated with the Pakistan Tehreek-e-Insaf (PTI), who ran as independents in the general elections.

The PTI-backed independent candidates are petitioners in 46 percent of these cases, followed by the Jamiat Ulema-e-Islam-Pakistan (JUI-P) at 13 percent, Pakistan People’s Party Parliamentarians (PPPP) at nine percent, PML-N at eight percent, and other independents at seven percent.

Key political figures and their election disputes

Several prominent political figures have challenged the election results, alleging rigging and irregularities.

Among the key political personalities from PML-N are party supremo Nawaz Sharif, his daughter Maryam Nawaz, former defense minister Khawaja Asif, PML-N's Anjum Aqeel Khan, Dr. Tariq Fazal Chaudhry, and Raja Khurram Shahzad Nawaz. Their ally, Istehkam-e-Pakistan Party (IPP) President Aleem Khan, is also among those contesting the poll outcomes.

From the ranks of the jailed former prime minister Imran Khan's Pakistan Tehreek-e-Insaf (PTI), notable complainants include former Punjab chief minister Parvez Elahi, his wife Qaisera Elahi, former Khyber Pakhtunkhwa finance minister Taimoor Jhagra, and ex-KP speaker Mahmood Jan.

Others from the PTI include former Punjab health minister Dr. Yasmin Rashid, Rehana Dar, Shoaib Shaheen, Amir Dogar, and Salman Akram Raja, along with several others.