SHC dismisses petition against appointments of four ECP members

A petition seeking quo warranto against four former members of the Election Commission of Pakistan (ECP), including three retired judges of high courts, who have recently concluded their terms as the body’s members, has been dismissed by the Sindh High Court (SHC) as not maintainable. Quo warranto is defined as a writ or a legal action that requires a person to show that by what warrant they hold, claim or exercise an office or franchise. The Aam Log Ittehad, a new political party headed by former Supreme Court judge Justice (retd)Wajihuddin Ahmed, sought quo warranto against Justice (retd) Shakeel Ahmed Baloch, Justice (retd) Irshad Qaiser, Justice (retd) Altaf Ibrahim Qureshi and former bureaucrat Abdul Ghaffar.

The party’s petition said that their appointments were made in violation of Article 207 of the constitution that barred the appointment of any retired judge of the SC or high courts from holding any office of profit in service of Pakistan, which included the ECP, two years after their retirement. The petitioner said that former judges of the Balochistan, Peshawar and Lahore high courts had taken their oath as members of the ECP prior to the completion of their prohibitory term of two years, while the former bureaucrat had been placed on the exit control list for his involvement in a Rs2 billion corruption scam. The party said the ECP members had been appointed in contravention of the law by the outgoing Pakistan Muslim League-Nawaz government with the support of the Pakistan Peoples Party, which was the largest opposition party in parliament.

The ECP and the other respondents said that the instant petition was misconceived, as the appointment of the ECP members was made by Pakistan’s president under Article 218(2)(a)(b) of the constitution, while the provisions of Article 207(2) were not attracted in the instant case. They explained that the procedure for the appointment of the chief election commissioner and the members of the ECP had been provided under Article 213, read with Article 218, and not under Article 207 of the constitution. They questioned the maintainability of the petition on the grounds that the instant petition had been filed with mala fide intention as a counter blast to the decision rendered by the ECP members against the petitioners, whereby the petitioners were had been disqualified from contesting the elections. Besides, they argued, the petition was also hit by laches (lack of activity in making legal claims), as it had been filed after an inordinate unexplained delay of more than two years after the date of the ECP members’ appointments.

They said that members of the ECP could only be removed by the Supreme Judicial Council in terms of Article 209 of the constitution, so quo warranto against the respondents was not maintainable and was, hence, liable to be dismissed. After hearing the arguments of the case, the SHC’s division bench headed by Justice Aqeel Ahmed Abbasi said that the office of the ECP was a quasi-judicial office, so the bar of expiration of two years in terms of Article 207(2) of the constitution would not be attracted in the case of appointment of retired judges of the SC and the high courts. The court said that quo warranto could not be issued against the retired judges on the grounds that their appointments had been made before the expiration of two years from the date they had ceased to hold office as judges of high courts, and the writ against them was misconceived and not maintainable.

Regarding quo warranto against the retired bureaucrat, the court said that neither any substantial constitutional or legal grounds had been agitated nor any sufficient material or evidence had been produced in support of the allegations of corruption against him. The court, therefore, had not inclined to conduct any inquiry or to make an investigation into the allegations levelled against the former bureaucrat while exercising the constitutional jurisdiction under Article 199(i)(b)(ii) of the constitution in the instant case, as the writ against him was not maintainable. The court, however, said the petitioners had locus standi (the right to be heard) to file the instant constitutional petition in the nature of quo warranto under Article 199(i)(b)(ii) of the constitution. The court explained that any person, who may not be an aggrieved party, can invoke the constitutional jurisdiction of a high court for the issuance of quo warranto so that a high court may examine the validity of an appointment to a public office on constitutional and legal grounds