ISLAMABAD:
In an important judgment that has far-reaching legal consequences, the Supreme Court has ruled that the question of jurisdiction is of paramount importance and has to be decided first before commencing a full-fledged trial.
"In case of any doubt, court is duty-bound to decide the question of jurisdiction before commencing a full-fledged trial,” reads an eight-page written order authored by Justice Muhammad Ali Mazhar while setting aside the Balochistan High Court judgement in an election matter.
It adds, “If the case is found to be beyond the jurisdiction of that court, the parties may be directed to seek appropriate remedy before an appropriate court or forum, rather than proceeding the whole case and then deciding the issue of jurisdiction; and if the appellate court holds that the court had no jurisdiction in the matter then the parties will have to start from scratch."
It is pertinent to note that throughout his trial, PTI Chairman Imran Khan had contested the jurisdiction and any other procedural lapse in the filing of Toshakhana reference before a trial court.
And despite Islamabad High Court's remand order, the trial court did not decide the jurisdiction issue first in the Toshakhana case.
A three-judge bench of the apex court led by Chief Justice of Pakistan Umar Ata Bandial heard the appeal against BHC order. The judgment said that the term ‘jurisdiction’ in the legal parlance means the command conferred to the courts by law and constitution to adjudicate matters between the parties.
"The jurisdiction of every Court is delineated and established to adhere to and pass legal orders. Transgressing or overriding the boundary of its jurisdiction and authority annuls and invalidates the judgments and orders.
"In order to deal with the different species of litigation, some courts and tribunals are vested with exclusive jurisdiction for taking cognizance of matters which other courts cannot take under the rigidity or stringency of exclusive jurisdiction to deal with and decide the lis.
"No Court has the right to decide any lawsuit which is beyond the purview of its jurisdiction and want of jurisdiction conveys an action beyond the domain earmarked to any particular Court or Tribunal which cannot be cured, even by consent or acquiescence of parties.
"It is the prime duty of the court to decide the question of jurisdiction first in case of doubts raised regarding jurisdiction, and in any such situation it is the responsibility of the Court to endeavor to resolve the issue of jurisdiction at an early stage of the proceedings.
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"For instance, it is an inherent sense of duty of the Court under Section 3 of the Limitation Act, 1908 to examine the plaint to make sure that the suit is not time barred even though the question of limitation is not set up as a defence. The rationale behind this intrinsic mechanism of assessment at an early stage is to submerge and lay to rest a time barred case without proceeding further."
The bone of contention is whether the high court after the constitution of the election tribunal could decide the election dispute between the two contestants or deem either one the winner in exercise of jurisdiction conferred under Article 199 of the Constitution.
The judgement notes that according to section 37 of the 2010 Act, no election under the Act shall be called in question, except by an election petition made by a candidate for the election, whereas Section 38 envisages that for the hearing of an election petition the ECP shall, by notification, appoint an officer to be an Election Tribunal for such areas as may be specified in the notification and, in line with Section 39, every election petition is to be tried in such manner as may be prescribed.
"The Election Tribunal, after the conclusion of the hearing, may pass an order under Section 41 of the 2010 Act, either (a) dismissing the petition; (b) declaring the election of the returned candidate to be void; (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) declaring the election as a whole to be void. While sub-section (2) of Section 41 articulates that the decision of the Election Tribunal on an election petition shall be final and shall not be called into question in any court or before any other authority.
"If we look at the parallel and corresponding provision, that is Section 139 of the Elections Act 2017, it also provides that no election shall be called into question except by an election petition filed by a candidate for that election and under Section 140, the composition of the Election Tribunal is laid out for election to an Assembly or the Senate, or in the case of election to a local government."
The judgement notes that chapter XII of the 2013 Rules also relates to election disputes. "According to Rule 72, no election shall be called into question, except by an election petition made by a candidate for that election, while Rule 74 relates to the contents of the petition in which the petitioner is required to mention the full particulars of any corrupt or illegal practice, or other illegal acts alleged to have been committed, as well as the relief claimed by the petitioner for (a) the declaration that the election of the returned candidate is void, and that the petitioner or some other person has been duly elected, or (b) that the election as a whole is void. In Rule 78 a detailed procedure is provided which is to be followed by the Election Tribunal appointed to deal with and decide election petitions.
"It is further envisaged under Rule 80 that the Tribunal shall be deemed to be a Civil Court with all the powers of a Civil Court for the trial of suit under the Code of Civil Procedure, 1908, and the Qanoon-e-Shahadat Order 1984 is also made applicable for the trial of an election petition."
The judgement also noted that the writ jurisdiction of the high court cannot be worn out as a solitary way out or remedy for aerating all sufferings and deprivations.
"The doctrine of exhaustion of remedies stops a litigant from pursuing a remedy in a new court or jurisdiction until the remedy already provided under the law is exhausted.
"The underlying principle accentuated in this doctrine is that the litigant should not be encouraged to circumvent or bypass the provisions assimilated in the relevant statute.
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"The extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be reduced to an ordinary jurisdiction of the High Court. It is a well settled exposition of law that disputed questions of facts cannot be entertained and adjudicated in the writ jurisdiction. The expression “adequate remedy” signifies an effectual, accessible, advantageous and expeditious remedy"
"The term functus officio literally denotes ‘of no further official authority or legal effect’ or ‘having performed his office’, and is used in the context of an officer who is no longer in office or has fulfilled its purpose. This doctrine has an extensive and pervasive application to both the judicial and quasi-judicial authorities and if such doctrine is considered insignificant, it will lead to disorder, therefore, this should be given credence to bring in decisiveness and certitude to legal proceedings.
"In the instant case, after notifying the returned candidates and appointment of Election Tribunals, the ECP being sanguine and mindful to the provisions contained under Section 37 of the 2010 Act, directed the parties to approach the Election Tribunal where the election disputes could be resolved by the Election Tribunal after recording evidence as the ECP had otherwise become functus officio for entertaining and deciding any election dispute.
"If the learned high court was of the view that the issue challenged before it was not an election dispute, then definite findings should have been recorded bearing in mind the bar contained under Section 37 of the 2010 Act and enabling provisions, but no findings were recorded with regard to jurisdiction."
Regarding present matter, the court notes that the high court neither determined the question of jurisdiction, nor rendered any findings as to why the aggrieved person was not bound by law to avail the remedy provided before the Election Tribunal under Section 37 of the 2010 Act which also gives rise to the doctrine of ‘per incuriam’, which is a Latin term meaning ‘through lack of care’.
The court already remanded the matter back to the high court for deciding in accordance with law the question of jurisdiction of the high court in an election dispute after hearing the parties preferably within a period of one month of the receipt of certified copy of this order.
"The decision of a Court becomes per incuriam when it is rendered in ignorance of a statute or a rule having the force of statute."
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