ISLAMABAD: Chief Justice Anwar Zaheer Jamali has taken suo motu notice of the perceived delay by the Election Commission of Pakistan (ECP) in holding by-elections in at least five different constituencies of the country, including NA-63 (Jhelum).

The chief justice observed that he had taken notice on a suo motu basis regarding the delay in the conduct of by-elections during a hearing in his chamber on Monday in which he heard appeals against the rejection of two petitions highlighting constitutional anomaly because of the delay in the by-polls.

“Not only the chief justice told us that he had taken the suo motu notice of the same subject but also agreed to club the two petitions along with the proceedings on the notice,” said Chaudhry Faisal Hussain, who appeared before the chief justice in the chamber.

“Since the contention raised in the petitions related to the larger public interest with regard to the fundamental rights, therefore, the case be fixed in the open court,” said the order passed by the chief justice while overruling the objections raised by the Registrar Office while returning the petitions.

The date of hearing will be decided later.

During the in-chamber hearing, Dr Khalid Ranjha represented Chaudhry Fawad Hussain, a PTI-backed candidate vying for the National Assembly seat from NA-63 (Jhelum) whereas Advocate Hamid Ali Shah represented Mussaib Abbas Aura, also a lawyer and a petitioner from the same constituency.

The petitions had challenged the notification issued by Chief Election Commissioner (CEC) Sardar Raza Khan through which the schedule for by-election (July 14) was postponed for an indefinite period because of the expiration of the tenure of four members of the ECP.

The process of appointing members of the commission may take quite some time since informal consultation between political parties is on to finalise the names.

The NA-63 (Jhelum) seat fell vacant on Sept 23 due to the demise of Malik Iqbal Mehdi Khan. Now his son Raja Matloob Mehdi has been fielded by the PML-N whereas Chaudhry Fawad Hussain will represent PTI in the elections.

The federal government through the law secretary, ECP, CEC, Raja Matloob Mehdi and other candidates participating in the elections have been named as respondents in the petition.

The petitioner contended that the postponement of by-elections in five constituencies, including NA-63, was in gross violation of the Constitution.

After submission of his nomination papers, the petition argued, the PTI candidate commenced election campaign with full force in the constituency by putting his heart and soul with the help of his supporters, workers and sympathisers.

The petition highlighted that the Supreme Court, being the sole custodian and protector of the democratic systems, norms, conventions and the Constitution, was committed to protecting, preserving and ensuring the public interest and fundamental rights to save them from derogation, negation, infringement and violation from any quarter, authority or body of the state.

The voters of the constituency, it highlighted, have a fundamental right to be represented in parliament by a democratically elected representative who can only be chosen through just, honest, free and fair elections.

It has also been a settled law that a constituency cannot remain unrepresented for an indefinite period and that the state was duty bound to ensure the right to be representation, by using all means available and on its disposal.

Thus, postponement of the by-election by the CEC is arbitrary and unwarranted and has the potential of causing political havoc by setting at naught the integrity and independence of electoral process that is so important and indispensable to the democratic system, the petition argued.

The federal government, under Article 218 of the Constitution, is duty bound to organise and conduct free and fair elections.

Similarly, under Article 224(4) of the Constitution, the election of a vacant seat has to be held within 60 days from the occurrence of the vacancy, therefore postponement of the elections for an indefinite time period was violation of the mandatory provisions of the Constitution, illegal and against the letter and the spirit of the law, the petition emphasised.

Published in Dawn, July 12th, 2016