The Supreme Court on Monday directed for suspension of notifications of 28 members of National Assembly, provincial assemblies and Senate who were elected during by-election process after April 20 last year, when the Election Commission of Pakistan was not constitutionally formed under the 18th Amendment.
A special bench comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Khilji Arif Hussain, Justice Tariq Parvez and Justice Sarmad Jalal Osmani on a Constitution petition moved by Pakistan Tahreek-i-Insaf chief Imran Khan clubbed with pending plea of Shaheed Benazir Bhutto, former chairperson PPP, in its order said that notifications of these representatives were suspended unless a constitutional amendment was adopted for all the legal and constitutional consequences.
The bench in its order observed that the election on these casual vacancies were held by the Election Commissioner after the 18th Amendment whereas such elections had to be organized under Article 219 (b) of the Constitution by the Commission and according to Article 218, it should be consisted of a chairman and four members, who had been judges of each province.
The bench in its order noted that there was no two opinion that the by-elections were not organized by the Commission under the constitutional mandate.
It said that they had repeatedly pointed out this aspect of the case and notices were also issued to returned candidates, some of them were represented through counsel.
So much so Attorney General for Pakistan had also appeared and candidly stated that after April 20, 2011, it was the duty of Commission to fill up casual vacancies, and since it had not been constitutionally formed so the bye-elections could not be held, it added.
The bench said that they could have passed the order on that date, but a restraint was exercised and the matter was referred to ECP, but unfortunately the issue was not taken up and after lapse of considerable period, the matter was taken up on December 21, 2011 but no progress was shown.
On Last hearing, the Attorney General pointed out that the issue was being rectified through a constitutional amendment so the hearing was adjourned, it added.
The bench further noted that in today’s hearing, no progress was made, except some efforts which were made to place the 20th Amendment, which was being laid down before the parliament.
They had pointed out to all citizens, particularly, public representatives that they were bound by the constitution due to their oaths and similarly, the Court was also bound to protect and preserve the constitution, it added.
The bench said that the fact was pointed out to all that unless a constitutional ratification was not made subject to all exceptions, they could not be regarded as elected representatives.
The court was bound to discharge its constitutional obligations, already showing much latitude in this issue, it added.
In its order, the bench observed that in such like situation, the functionaries could have voluntarily restrained from performing their functions to uphold the constitution till the constitution was amended.
The bench also said under the constitutional provisions including Article 218 (3), it was the obligation of ECP to conduct elections and make arrangements to ensure that these were held fairly and in transparent manner and corrupt practices were guarded against.
Essentially, when the voters’ lists which were found bogus, the bye elections could not be held, it added.
The bench made it clear that they never restrained the ECP from holding elections under Article 218 (3) but held that it should ensure arrangements on basis of authentic and error free electoral lists.
At the outset of proceedings, chairperson National Assembly Standing Committee on law and justice Begum Naseem Akhtar Chaudhry, appeared and apprised that they had prepared the 20th constitutional amendment and it was being tabled in the parliament.
She requested the bench to grant them few days time and assured that the amendment would be adopted with a two-thirds majority.
The Chief Justice observed that they were not going to de-seat these elected people but would pass an interim order.
Further hearing was adjourned for two weeks while the bench also put off hearing in other rellated issues till February 21.