The Supreme Court on Thursday came very close to a very drastic step: disqualifying 23 legislators. But it stopped short when assured that Parliament was addressing the matter.
Though it stopped short of the disqualification order, it did bar the Election Commission of Pakistan (ECP) from holding by-polls on the basis of existing electoral rolls and ordered the commission to prepare authentic electoral rolls before holding by-polls in any constituency.
Hearing a constitutional plea moved by Pakistan Tehreek-e-Insaf chairman Imran Khan for the removal of over 28 parliamentarians elected between the passing of the 18th Amendment and the completion of the ECP’s full strength, the court, however, exercised judicial restraint by not granting a prayer to the petitioner’s appeal.
A four-judge bench headed by Chief Justice Iftikhar Muhammad Chaudhry, granted fifteen days for the passage of the 20th Amendment in Parliament to protect the membership of 23 sitting parliamentarians elected in the absence of a constitutionally-mandated ECP as prescribed under the 18th Amendment.
During the course of hearing, the chief justice remarked that the issue of election of these members was being overstretched, adding that even though the court had no jurisdiction to pass a directive to the Parliament, they would suspend the membership of such legislators.
The legality of the by-polls arranged under the ECP which was not reformed in line with the 18th Amendment had not been met during the by-polls of certain constituencies. The 18th Amendment required four judges—one from every province—to be appointed as members of the commission for holding elections in a transparent manner.
Chairperson of National Assembly Standing Committee on Law and Justice Naseem Chaudhry and Attorney General of Pakistan Molvi Anwaul Haq, however requested the bench not to suspend the membership of those sitting parliamentarians. Naseem assured the bench that a constitutional amendment (20th Amendment) was being introduced to provide protection to by-elections results, which took place between the passage of the 18th Amendment, and it would be adopted by the Parliament soon.
Be that as it may, the chief justice observed that the court would not accept any unconstitutional steps and it was clearly evident that the ECP had not been constitutionally mandated during the period it held the elections for the concerned constituencies.
The CJ went on to state that the legislation to be adopted in the Parliament meant that lacunae in the by-elections were being accepted by the legislature. Further questioning the effects of such a constitutional amendment, he observed that judges and legislators had taken an oath to protect the Constitution and the ECP was bound to obey the judicial order and not to hold any by-polls without the verification of voter lists. The attorney general had already been told that the holding of by-polls in the absence of a constitutionally constituted ECP was not possible, the chief justice added.
The hearing was adjourned till February 6.
Published in The Express Tribune, January 20th, 2012.
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Supreme Court Zindabad.
Looking at the actions of the ever-full-consensus courts, there are only two possibilities: (a) the parliamentarians are totally illegitimate or (b) the judiciary is grossly exceeding its limits. If the former is the case then the parliament voluntarily should dissolve itself; and if the latter is the case then the parliament should assert itself unapologically. Either way, its the parlament's call. Watching this scene everyday is a torture for the common man which is made worse by the courts' favorite Mr. Nawaz Sharif who has perfected the art of flip flopping. This should end now. Please?.