ECP's power to appoint tribunals affirmed

ISLAMABAD:

Supreme Court's Justice Jamal Khan Mandokhail has noted that the power to appoint election tribunals rests solely with the Election Commission of Pakistan (ECP). However, in order to ensure free and fair elections, an independent machinery is necessary.

"In such a view of the matter, the power to adjudicate such a delicate task, has been assigned to the judiciary. Therefore, in the case of appointing a sitting judge of a high court, consultation with the chief justice of the high court concerned by the ECP is a condition precedent," Justice Mandokhail said.

Justice Jamal Khan Mandokhail was part of a five-judge bench led by Chief Justice of Pakistan Qazi Faez Isa that on September 24 set aside a Lahore High Court (LHC) verdict in the Punjab election tribunal case.

While hearing some writ petitions challenging the authority of the ECP to appoint election tribunals in Punjab, a single-member bench of the LHC on May 29 ruled that election tribunals in the province were to be appointed on the recommendation of the LHC chief justice.

The ECP had challenged the LHC order in the apex court which last week accepted the polls oversight authority's appeal. The bench on Monday issued its detailed verdict which included an additional note by Justice Mandokhail.

The judge noted that the rationale behind consultation with a chief justice is that he is not only the administrative head of a high court but also is in the best position to know and assess the suitability and availability of the judges.

"As several judges are performing their functions in different benches, therefore, while nominating judges, it will be convenient for the chief justice to consider availability of Judges at relevant Benches. In this way, the determination of territorial jurisdiction can also be resolved suitably.

Justice Mandokhail noted that once a chief justice nominates judges for the purpose of appointment as tribunals, the ECP is bound to accept the names and notify them accordingly, unless, there are cogent reasons, which must be communicated to the chief justice. "If the chief justice is satisfied with the reasons advanced by the commission, he may substitute a judge accordingly," he said.

The judge stated that the Constitution and Section 140 of the Election Act do not provide for any provision, enabling the ECP to request for a panel of judges for the purpose of appointment as tribunals.

"The intention of the legislature is evident from the fact that they did not assign power to the commission to ask for a panel of judges and pick and choose a judge of its own choice amongst them.

"The commission must have faith in every judge and can only ask a judge against each tribunal. The primacy, therefore, lies in the final opinion of the chief justice."

He said the ECP is a constitutional body and the chief justice and judges are holding constitutional posts.

"It is expected that members of both the institutions must respect each other and in case of any issue, they are supposed to have a meaningful consultation as has been provided by the Act.

"In the case at hand, earlier there was no meeting between the two institutions, therefore, there was no proper consultation, which has resulted in litigation.

During the pendency of these appeals, when the hon'ble chief justice and the commission decided to have a meaningful consultation, the result is before us that consensus has developed between them.

"I hope that now the commission will take all necessary steps immediately, enabling the tribunals to start functioning and to conclude the proceedings upon the petitions within the stipulated period of time, accordingly," he added.