18th Amendment reforms: SC forms special bench to judge by-elections

SC rejects govt request to let parliament decide fate of 28 legislators elected after passage of the 18th Amendment.

ISLAMABAD:

The lawmakers may have a seat for now, but the long-term legality of their election is still very much up in the air.

The Supreme Court on Thursday rejected the government’s request to let parliament decide the fate of 28 legislators who were elected in by-polls held after the passage of the 18th Amendment.

Chief Justice Iftikhar Muhammad Chaudhry formed a special bench to assess the legality of the by-elections that were arranged under the Election Commission of Pakistan (ECP) – which is yet to reform in line with the constitutional amendment.

The 18th Amendment directed the government to appoint a permanent ECP comprising the chief election commissioner (CEC) and one retired high court judge from each of the four provinces.

The government appointed four retired high court judges as members of the ECP last year. However, the posts were vacant from April 2010, when the amendment was passed, till their appointment in June 2011. During this period by-elections were held for a number of parliamentary seats, despite the ECP being incomplete.

Heading the four-judge bench, the chief justice also ordered reissuing notices to all 28 provincial and federal legislators, through secretaries of the National Assembly, the Senate and the provincial assemblies. The federal government, through Attorney General Maulvi Anwarul Haq, said that a bill had been drafted and was being tabled before the assembly to give cover to the elections held when the commission was not adequately staffed.

Haq argued that the court was hearing the case under its discretionary jurisdiction, which required it to intervene in a matter where constitutional violation had been apparent. He claimed this was not true in this instance. “In this case there is not even a shred of evidence that the by-polls were not free and fair,” Haq said.

The chief justice asked Haq to take into consideration the consequences of not holding elections in accordance with the scope of the 18th Amendment. Earlier, the chief justice took an exception to the ECP Joint Secretary’s statement that they did not have a proper computer system to speed up the process of completing electoral rolls.

The court has two petitions on its desk relating to updating electoral rolls to exclude bogus voters. One was filed by former premier Benazir Bhutto and the other by Pakistan Tehreek-e-Insaaf Chairman Imran Khan. The ECP has itself admitted that the 2008 elections included 3.7 million fake votes out of a total of over 8 million votes.

ECP Joint Secretary Muhammad Afzal Khan informed the court that the ECP would take another couple of months to complete the voters list, if the NADRA added a couple of mega printing machines able to run around-the-clock.

PTI chief’s counsel Hamid Khan said that the commission had been processing the verification of votes for the last three months at a snail’s pace, as evident from the fact that only 15% of the required task had been done. The chief justice reminded the commission that it was its constitutional obligation under Article 219 to update the electoral rolls every year.

“If we, being the court, say that we cannot perform our constitutional duty, we have no right to sit here. We will not extend the deadline,” the chief justice said.

Published in The Express Tribune, January 13^th, 2012.