In a big blow to Pakistan Tehreek-e-Insaf (PTI) backed lawmakers, the Supreme Court on Monday unanimously accepted the Election Commission of Pakistan's (ECP) request and declared a June 12 decision from the Lahore High Court (LHC) on appointments to election tribunals as null and void.
This was decided by a five-judge bench led by Chief Justice of Pakistan Qazi Faez Isa and comprising Justice Aminud Din Khan, Justice Jamal Khan Mandokhel, Justice Naeem Akhtar Afghan and Justice Aqeel Ahmed Abbasi.
The 11-page judgment, authored by Chief Justice Isa, also contains an additional note from Justice Mandokhail. Justice Abbasi concurred with Justice Mandokhail's opinion.
While deciding the matter, the top court held that the LHC's June 12 decision did not consider that no meeting occurred between the LHC chief justice and the Chief Election Commissioner (CEC). The top court further held that the high court would not have issued such a verdict if the said meeting was given due consideration.
In the written judgment, Chief Justice Isa observed that a cautious approach should be adopted when an issue relates to a constitutional body and it must be ensured that adjudication is resorted to as a last resort and when necessitated.
"Since the matter has been amicably resolved there is no need to decide these cases," the judgment held, while appreciating the LHC's chief justice and the ECP for settling the matter amicably.
"Undoubtedly, they realised their respective constitutional and legal responsibilities and rose to the occasion to do the needful," observed CJP Isa.
"If the learned judge, whose judgment is impugned herein, had realised that a face-to-face meeting had not taken place by the ECP/CEC with the chief justice, we are sure he would not have passed the impugned judgment," chief justice further observed.
"The people, who we all eventually serve, expect nothing less," observed Chief Justice Isa.
Justice Mandokhail's note
In his additional note, Justice Jamal Khan Mandokhail observed that the Election Commission of Pakistan (ECP) must have faith in every judge and can only ask a judge against each tribunal.
He further observed that the Constitution and Section 140 of the Elections Act 2017, do not provide any provision enabling the ECP to request a panel of judges for appointment to the tribunals.
"The intention of the legislature is evident of 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."
Justice Mandokhail noted that in such a scenario, "the primacy, therefore, lies in the final opinion of the Chief Justice."
He further observed that even otherwise, the commission is a constitutional body and the chief justice and judges hold 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."
The case, Justice Mandokhail observed, proved that the mechanism provided for a meeting between the ECP and the chief justice was aptly created.
"In the case in hand, earlier there was no meeting between the two institutions, therefore, there was no proper consultation, which has resulted into litigation. During the pendency of these appeals, when the chief justice and the commission decided to have a meaningful consultation, the result is before us that consensus has developed between them."
Justice Mandokhail hoped that the commission would now take all necessary steps immediately, enabling the election tribunals to start functioning and to conclude the proceedings upon the petitions within the stipulated period.
"No doubt, the power to appoint tribunals rests only with the commission, but in order to ensure a free and fair election, an independent machinery is necessary," he observed, adding, "In such view of the matter, the power to adjudicate such delicate task, has been assigned to the judiciary."
"Therefore, in case of appointing a sitting judge of a high court, consultation with the chief justice of the high court concerned by the commission is a condition precedent."
Justice Mandokhail further explained, "The purpose of the consultation is because of the realisation that the chief justice is not only the administrative head of the 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."
However, he noted that once the chief justice of a high court nominates a judge or judges for appointment to election tribunals, "the commission 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."