๐ ๐๐จ๐ฎ๐ซ๐ญ ๐จ๐ซ ๐ ๐๐ซ๐ข๐๐ฎ๐ง๐๐ฅ ๐๐๐ง๐ง๐จ๐ญ ๐๐๐ญ๐๐ซ๐ฆ๐ข๐ง๐ ‘๐๐ฎ๐ซ๐ข๐ฌ๐๐ข๐๐ญ๐ข๐จ๐ง๐๐ฅ ๐ ๐๐๐ญ’ ๐๐จ๐ง๐๐ฅ๐ฎ๐ฌ๐ข๐ฏ๐๐ฅ๐ฒ ๐ฎ๐ง๐ฅ๐๐ฌ๐ฌ ๐๐ฆ๐ฉ๐จ๐ฐ๐๐ซ๐๐ ๐๐ฒ ๐ญ๐ก๐ ๐๐๐ ๐ข๐ฌ๐ฅ๐๐ญ๐ฎ๐ซ๐: ๐๐
Justice Syed Mansoor Ali Shah of the Supreme Court has very aptly elaborated the doctrine of Jurisdictional Fact in a recent case wherein the Election Commission of Pakistan had assumed jurisdiction in a defection case of a politician wherein the said politician had denied the signing of the consent affidavit on the basis of which he was sought to be declared defective under Article 63 of the Constitution. The ECP, even after having denied the signature on the said affidavit, declared Mr. Adil Bazai defective who appealed to the Supreme Court.
The Court in this background held that there two kinds of forums: once which is conclusive with power which can decide the matter before it as well as determine the facts on the basis of which its jurisdiction depends. Such facts on the basis of which a tribunal or a court’s jurisdiction is dependent is called jurisdictional fact. Two which is not conclusive with such power and can only decide the matter before it but not the facts on the bases of which its jurisdiction depends. The first kind of forum can determine the jurisdiction fact conclusively without referring the matter to civil court for assuming jurisdiction. The determination with regard to determination or assuming jurisdiction of this kind of forum will be final and conclusive.
However, the second kind of forum can tentatively and objectively determine the facts on the basisย of which its jurisdiction depends but it cannot conclusively decide such facts and assume jurisdiction. Further, decision with regard to jurisdictional fact will always be subject to final determination by a competent civil court.
The Court after analyzing the doctrine of jurisdictional fact came back to the merits of the case and held that the ECP falls under the second kind of forum whose power to determine jurisdictional fact is not conclusive and it is subject to the decision by a competent civil court. The ECP’s power in this regard is limited.
In this background, the Court ruled that the assumption of jurisdiction by the ECP in the case in hand without having the authenticity of the affidavit of Mr. Adil Bazai determined by a competent civil court is wrong and not in accordance with law and Constitution. Ayesha Malik J. also lamented the conduct of the ECP in her additional note.
c.a._1507_2024_20012025