' MUHAMMAD ALI MAZHAR, J.---This Constitution Petition has been brought to challenge an order dated 18-12-2014 passed by the respondent No,2 on the Transfer Application No,1/2014 filed by the petitioner under section 58 of the Representation of the People Act, 1976.
2. The petitioner was a candidate for Provincial Assembly 29, Khairpur-1, Sindh for the Election 2013 whereas the respondent No,3 was also candidate for the same constituency. The petitioner was declared returned candidate by the Election Commission of Pakistan. Being aggrieved, the respondent No,3 challenged the result of election and filed election petition which was transferred to the election tribunal at Sukkur for adjudication and marked as Election Petition No,149/2013 thereafter it was transferred to respondent No,4 and renumbered as Election Petition No,13/2013.
3. The petitioner had filed his written statement and denied the allegations. The respondent No,4 reserved the judgment but instead of announcing judgment, he issued show cause notice on its own motion to the petitioner. The petitioner filed a transfer application under Section 58 of the Representation of the People Act, 1976 and leveled allegations of biasness against the Tribunal.
Vide order dated 12-12-2014, the Election Commission of Pakistan was pleased to call the comments and also directed the Election Tribunal not to pass any order in the election petition pending before him. However on 18-12-2014, the respondent No,2 dismissed the Transfer Application.
4. The learned counsel for the petitioner argued that after 18th amendment in the Constitution, the word "Commission" has been substituted for the word "Commissioner" under Article 219 of the Constitution and now the powers of election commissioner vests in the election commission. The impugned order is nullity in the eye of Constitution and law. So far as the grounds of transfer agitated in the transfer application before the commission, he argued that the respondent No,2 failed to appreciate that the Presiding Officer of the Election Tribunal has always had bias and prejudice towards the leadership of Pakistan People's Party at different times in different cases but the respondent No,2 failed to take note of the conduct of the Presiding Officer of the election tribunal. It was also contended that section 58 of Representation of People Act cannot override the constitutional provisions when under the constitutional mandate only commission is empowered to hear and decide the transfer application and the learned Chief Election Commission could not pass the order alone. He further argued that earlier the same transfer application was put up before the commission when notice was issued and tribunal was directed not to pass any order but subsequently in absence of other members of commission, the respondent No,2 alone heard and dismissed the transfer application which order is coram non judice. In support of his contention, he referred to the following case-law:--
(1) PLD 2004 SC 600 (All Pakistan Newspapers Society v. Federation of Pakistan). Needless to observe that in the administration of justice determination of the jurisdiction by the Court seized with the matter is ,one of the important elements because if justice has been provided basing upon coram non judice orders, it would have no legal sanction behind it.
(2) PLD 2007 SC 369 (Imtiaz Ahmed Lali v. Ghulam Muhammad Lali). It may also be noted that vide amendment on 6th November, 2002, the provision of Article 8D (2) (i) of the Election Order, 2002 have been brought in consonance with the provisions of the Constitution. Essentially the subordinate Legislature cannot run contrary to the Constitutional provisions.
(3) 2011 SCMR 1084 (Dr. Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso and others). Petition under Article 199 of the Constitution before High Court for challenging the order of Election Commission was competent and maintainable in law. Order passed by Election Commission was arbitrary and result of patent misreading of record and was not open to challenge before Election Tribunal by way of remedy of election petition under Section 52 of Representation of the People Act, 176.
(4) 2012 SCMR 448 (Imran Khan and others v. Election Commission of Pakistan and others). It is matter of great concern that Bye-elections of the following Members of Senate, National Assembly and Provincial Assemblies were conducted by the Election Commissioner although after the 18th Constitutional Amendment such elections were to be organized under Article 219(b) of the Constitution of Islamic Republic. Of Pakistan 1973 by the Election Commission. According to Article 218(2) of the Constitution, the Election Commission shall consist of (a) Commissioner who shall be the Chairman of the Commission, and (b) four Members, each of whom has been a Judge of a High Court from each Province. There is no two opinions that the above elections were not organized by the Commission.
(5) 2014 SCMR 1524 (Abdul Majeed Khan through L.Rs v. Ms. Maheen Begum and others). Article 199.
Constitutional jurisdiction of the High Court. Scope. Orders/judgments passed by a lower court or authority without jurisdiction. Such orders/judgments were deemed to have been passed illegally and the High Court would be justified in exercising its constitutional jurisdiction to rectify the same.
It is also a settled principle that where any orders or judgments passed by any court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances the High Courts are justified in exercising its constitutional jurisdiction to rectify the same, thus, in the instant case the High Court has rightly exercised its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, reliance can be placed upon the cases of Noor Muhammad Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others (2003 SCMR 708) and Haji Noorwar Jan v. Senior Member, Board of Revenue, NWFP Peshawar and 4 others (PLD 1991 SC 131), the relevant portions therefrom are reproduced herein below:-- "8.... It was further observed by this court that any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law...."
And, "19. The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it any laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law......."
5. The learned counsel for the respondent No,3 argued that the petitioner has approached this court to subvert the process of law and is seeking the premium of his own wrongs committed on the day of general election. Prior to this petition, he levelled so many allegations against the Election Tribunal Sukkur and now he leveled so many allegations against the Election Tribunal, Karachi and filed the transfer petition which was dismissed. He further argued that the respondent No,2 can pass order according to law. This court cannot entertain this petition to decide the election dispute in view of the bar contained under Article 225 of the Constitution. He relied upon the case reported in PLD 2013 Sindh 117 (Syeda Waheeda Shah v. Election Commission of Pakistan), in which the learned Division Bench of this court held that the Chief Election Commissioner (CEC) alone had jurisdiction to pass order under Section 100 of Representation of the People Act, 1976, but not the Commission. Disqualification of a candidate would take place only by an order passed to such effect by Chief Election Commissioner. While referring to the aforesaid precedent, the learned counsel argued that the Divisional Bench of this court had set aside the disqualification order of the Waheeda Shah passed by the Commission on the premise that powers under Section 100 of Representation of People Act could be exercised only by the Chief Election Commissioner. However it was left open that Chief Election Commissioner in his discretion can pass an order after providing an adequate opportunity of hearing.
6. The learned DAG argued that the petition is not maintainable. This court has no jurisdiction to entertain the petition against the Election Commission. The Constitutional jurisdiction under Article 199 cannot be exercised in derogation of Article 225. He further argued that there was no need or presence of other Members of the Commission as Section 58 of the Representation of the Peoples Act, 1976 empowered the learned Chief Commissioner to transfer any election petition from one Tribunal to another Tribunal. He further argued that the election disputes are resolved in view of Article 225 of the Constitution and procedure for resolving the election disputes is well defined under Chapter VII of the Representation of the People Act, 1976. It was further contended that after promulgation of 18th Amendment in the Constitution, no doubt the word "Commission" has been substituted for the word "Commissioner" in Articles 219 and 221 of the Constitution but the Election Disputes are still resolved under Article 225 which has not been amended yet. Even no aniendment is made under section 58 of the Representation of the People Act, 1976 in which powers of transfer are vested in the Commissioner without any change. The learned DAG referred to a judgment reported in PLD 1999 Lahore 181 (Shahid Rashid v. Nasir Siddique Alvi and others) which dealt with a constitution petition filed for seeking transfer of election petition to some other Election Tribunal.
Contention of petitioner was that Election Tribunal passed number of orders which created genuine apprehension in the mind of the petitioner that he will not get fair and impartial trial of the Election petition. The court held that nothing on record is available to indicate Election Tribunal was not proceeding impartially or he had inclination towards the respondent. Election Tribunal having dismissed earlier application of respondent by a detailed order it had to justify his order to be passed on fresh application for stay. Election Tribunal had to jealously guard his reputation. It was further held that petitioner failed to make out a case in the constitutional jurisdiction for interference therefore the petition was dismissed.
7. Due 'to scarcity and or to save the time, the learned counsel representing the parties had agreed that this petition may be heard and decided at Katcha Peshi stage and argued the case extensively. The bone of contention between the parties is whether the respondent No,2 could singly decide the transfer application moved by the petitioner or that the transfer application should have been heard and decided by the Election Commission of Pakistan and not by the Chief Election Commissioner alone. Earlier to the 18th Constitutional Amendment, Article 219 of the Constitution was germane to the duties 'of Commissioner. However, by virtue of 18th Amendment in the Constitution notified on 20-4-2010 the word "Commission" was substituted for the word "Commissioner". For ready reference Article 219 of the Constitution is reproduced as under:- "219. Duties of Commission.--The Commission shall be charged with the duty of:--
(a) preparing electoral rolls for election to the National Assembly and the Provincial Assemblies, and revising such rolls annually;
(b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and
(c) appointing Election Tribunals;
(d) the holding of general elections to the National Assembly, Provincial Assemblies and the local governments; and
(e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament).
Provided that till such time as the members of the Commission are first appointed in accordance with the provisions of paragraph (b) of clause (2) of Article 218 pursuant to the Constitution (Eighteenth Amendment) Act, 2010, and enter upon their office, the Commissioner shall remain charged with the duties enumerated in paragraphs (a), (b) and (c) of this Article".
8. It is clear from the aforesaid Article that prior to the amendment the duties enumerated under Article 219 were to be performed by the Commissioner single handedly and solitarily, but now the said duties are to be performed by the Commission constituted under Article 218 of the Constitution. The Election Commission is charged with the duty to organize and conduct the elections and to make such arrangement as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. Further duties of the Commission are provided under Article 219 which includes the task, of preparing electoral rolls for election, organizing and conducting election to the Senate and holding of general election to the National Assembly and Provincial Assembly and local government including appointment of election tribunals. Prior to 18th Amendment the election tribunals were to be appointed by the Commissioner but after the 18th Amendment the appointment of election tribunals is now the duty of Commission. Counsel for the respondent though not disputed the constitutional amendment but they focused their arguments to the premise that under Representation of the Peoples Act, 1976, chapter VII pertains to the election disputes and Section 58 confers the powers of transfer to the Commissioner as despite constitutional amendment there was no amendment made in Section 58, so the learned Election Commissioner may exercise his powers of transfer solely without the presence of other learned members of the commission. To appreciate this contention, let us examine and reproduce the procedure of the commission provided under Section 3 of the ROPA as under:-
3. Procedure of the Commission.--(1) Subject to the provisions of this section, the Commission shall regulate its procedure.
(2) If, upon any matter requiring a decision of the Commission, there is difference of opinion among its members, the opinion of the majority shall prevail and the decision of the Commission shall be expressed in terms of the opinion of the majority.
(3) The Commission may exercise its powers and perform its functions notwithstanding that there is a vacancy in the office of any one of its members or that any one of its members is, for any reasons, unable to attend its proceedings and the decision of the other two members shall have the effect of the decision of the Commission; ' Provided that, in the event of a difference of opinion between the two members attending the proceedings of the Commission, the matter shall be placed for decision before the Commission.
9. The above procedure envisions that the commission shall regulate its procedure, however if upon any matter requiring a decision of the commission there is a difference of opinion among its members, the opinion of the majority shall prevail and the decision of the commission shall be expressed in terms of the opinion of the majority. It is further envisaged that the commission may exercise its powers and perform its functions notwithstanding that there is vacancy in the office of any one of its members or that any one of its members is, for any reason, unable to attend its proceedings and the decision of the other two members shall have the effect of decision of the commission and in the event of a difference of opinion between the two members attending the proceedings of the Commission, the matter shall be placed for decision before the Commission. It is matter of record that the transfer application of the petitioner was placed before the Election Commission of Pakistan i,e, the learned Chairman and three Members who had passed the following interim order:-- "ORDER Comments of learned Election Tribunal may be sought immediately through fax, etc. And notices be issued to respondents for 15-12-2014. Meanwhile, the learned Election Tribunal is directed not to pass any order in, the petition pending before him. Adjourned to 15-12-2014 at 11.30 a.m.
(Sd/-)
Mr. Justice Sardar Muhammad Raze) Chairman (Sd/-)
Mr. Justice (R) Muhammad Roshan Essani)
Member (Sd/-)
Mr. Justice (R) Riaz Kayani) Member (Sd/-)
Mr. Justice (R) Fazal-ur-Rehman)) Member
10. It is also a matter of record that the transfer application was filed before the election commission and not before the Commissioner however, the impugned order dated 18-12-2014 shows that the transfer application was fixed before the learned Chief Election Commissioner of Pakistan, which was dismissed. The interim order was passed by the learned Chairman along with three other learned members. May be on that date one of the learned members of the commission was not in attendance but it would have no adverse effect in view of subsection (3) of Section 3 of Representation of the People Act. In our view under Article 219 of the Constitution the commission is charged with the duty to appoint election tribunals so the transfer application should have been placed before the commission as it was done at the time of passing of interim order by the learned commission and in absence of the other learned members of the commission, the learned Chief Election Commissioner could not decide the transfer application single handedly. The powers of transfer the proceedings from one forum to another are somewhat administrative and supervisory in nature. At this moment in time the appointing authority of the election tribunal is the Election Commission and not the Commissioner alone therefore the powers of transfer also vests in the Election Commission which are akin and or ancillary and incidental to its main powers of appointing the election tribunal bearing in mind Article 219 of the Constitution. The determination of the jurisdiction is one of the important elements, if justice is based on coram non judice orders, it would have no legal A sanction behind it.
11. It is well known that Article 199 of the Constitution casts an obligation to act in aid of law and protect the rights within the framework of the constitution against the infringement of law and constitution. All laws fall within encompass of sub-constitution legislation and they cannot claim superiority over the constitutional power and jurisdiction vested under Article 199 of the Constitution. The constitution being supreme must obviously prevail. The courts derive powers from the constitution and function under it. It is settled principle of constitutional interpretation that provision enshrined in the constitution shall prevail notwithstanding anything contrary contained any piece of subordinate legislation. In case of conflict between any provision of constitution and the subordinate piece of legislation on a subject, the constitutional provision will prevail over the latter, subordinate legislation cannot run contrary to constitutional provision. It is an elementary rule of construction of constitutional instrument that effect should be given to every part and every word of the constitution.
12. If we look into the precedents quoted by the learned counsel for the petitioner and the ratio expounded and or deducible therefrom, the apex court held that if justice has been provided basing upon coram non judice orders, it would have no legal sanction behind it. After the 18th Constitutional Amendment elections are to be organized under Article 219 (b) of the Constitution of Islamic Republic of Pakistan 1973 by the Election Commission. The subordinate Legislature cannot run contrary to the Constitutional provisions. It is also a settled principle that where any orders or judgments passed by any court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances the High Courts are justified in exercising its constitutional jurisdiction to rectify the same. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law.
13. The precedent referred to by the learned DAG is distinguishable and not attracting to the facts and circumstances of this case so far as the case of Syeda Waheeda Shah decided by the learned Division Bench of this court is concerned, the appeal is pending in the apex court where the leave has been granted. Even otherwise, the said case draw a parallel to the powers exercised by the commission under Section 103AA for declaring a poll void and disqualification on account of certain offences under 100 of ROPA. The commission by a common order had declared the poll void and also disqualified the said petitioner. The learned division bench upheld the order passed under Section 103AA but set aside the order to the extent of disqualification only keeping in view the minutiae of Section 100 of ROPA and held that Chief Election Commissioner (CEC) alone had jurisdiction to pass order under Section 100 of Representation of the People Act, 1976, but not the Commission. However it was left open to the learned Chief Election Commissioner in his discretion to pass an order after providing an adequate opportunity of hearing. With all humility and self- effacement, we would like to distinguish that matter in issue before us is the effect of 18th Constitutional Amendment made under Article 219 of the Constitution in connection with the duty of Election Commission vis-a vis. The powers to transfer the election petition as envisioned under section 58 of the ROPA and after due deliberation we have no disinclination in our mind to comprehend that niceties of Section 58 cannot predominate or disregard the constitutional amendment.
14. At this juncture, we would also like to be benefited by the dictum laid down by the apex court in the case of Sindh High Court Bar Association reported in PLD 2009 SC 879 that "each and every organ of the State is bound to discharge its duties within the command of the Constitution." It was further held that "Constitution is a social binding contract. Conduct of all organs has to be in terms of constitution subject to the condition that you accept the Constitution from the core of your heart. Nobody is above the Constitution and cannot imagine to do anything in violation of the Constitution and rule of law." In the case of Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others reported in PLD 2005 SC 193, the court held "while interpreting Constitutional provisions Courts should keep in mind, social setting of the country, growing requirements of the Society/nation, burning problems of the day and the complex issues, facing the people, which the Legislature in its wisdom through legislation seeks to solve. Judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid." While in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others reported in PLD 1993 Supreme Court 341 it was held that "The interpretation of Constitution attracts most of the principles employed in interpreting the statutes, but care has to be taken that it is not restrictive, pedantic or limited. Unlike other enactment the Constitution is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare and amity among the citizens and the nations. Abroad. It is the basic structure on which the entire edifice is built and therefore it has to be interpreted in a manner to keep it alive and blossom in every atmosphere and in every situation". In the case of Messrs Al-Raham Travels and Tours (Pvt) Ltd. And others v. Ministry of Religious Affairs, Hall, Zakat and Ushr through Secretary and others reported in 2011 SCMR 1621, apex court held "Constitution is a living organism and has to be interpreted to keep alive the traditions of past blended in the happening of present and keeping an eye on the future as well. Constitution must be interpreted keeping in view the entire canvas of national fabric, be it political, social, economic or religious. Constitution is to be interpreted liberally and saved from cosmetic circumscription and construction. Constitution is not a document of past or present, so it is to be interpreted in a manner to meet the changing conditions of socio-religio and economic dynamics of the State".
15. In the wake of above discussion, the petition is admitted to regular hearing and allowed.
Consequently, the impugned order passed by the respondent No,2 on 18-12-2014 (C.M.A. No,1/2014 in Election Petition No,149/2013--New Election Petition No,13/2013) is set aside and matter is remanded back to the learned Election Commission with the directions to decide the transfer application afresh preferably within a period of 20 days. Till such time the transfer application is decided by the Election Commission, the proceedings before learned Election Tribunal will remain suspended.