ISLAMABAD, March 5: Attorney-General Makhdoom Ali Khan on Tuesday said that the Chief Election Commissioner has not been given “unusual immunity from legal action”.
Responding to the reports based on the Order promulgated by the President on Monday, the AG, in a press statement, said an impression had been created that amendments in certain election laws provided unusual immunity to the CEC from legal action and ensured that he would not be answerable to the courts. “These provisions have no such effect,” he said.
He said the article (Local Government (Amendment) 2002) provided that no suit, prosecution or other legal proceedings should lie against the CEC or any officer for anything done in good faith, was a provision which was common to such statutes. “It is similar to Section 106 of the Representation of People Act and Section 87 of the Senate (Election) Act, 1975.”
This provision, the AG said, did not oust the writ jurisdiction of the high courts and the Supreme Court. It only provides protection from civil suits.
The high courts and the Supreme Court have further curtailed the scope of such provisions by observing that these were to be strictly construed.
The AG said Section 105 of the Representation of the People Act 1976, Section 86 of the Senate (Election) Act 1975, Section 11 of the Delimitation of Constituencies Act 1974 and Section 29 of the Electoral Rolls Act 1974 were to the similar effect. “Such a provision does not oust the constitutional jurisdiction of the superior courts who will continue to hold full sway in the matter.”
It, however, protects the commission and the commissioner and the officers acting under its authority from interference in their functions by the civil courts.
The jurisdiction of the civil courts, however, is not ousted where these officers or authorities have acted without jurisdiction or mala fide or where the authority had been incompetently constituted.
“The CEC and the commission will continue to remain answerable to even the civil courts to the above extent. Insofar as the superior courts of the country are concerned their constitutional jurisdiction to issue writs to the commission remains completely unaffected by this legislation. The statute does not bring about any change in the law on the subject, in this respect.”