ISLAMABAD: Chief Justice of Pakistan Anwar Zaheer Jamali on Wednesday expressed his disappointment over important constitutional institutions that were becoming virtually non-functional.

“This is not how a country runs,” the chief justice observed as the apex court took up applications moved by the Election Commission of Pakistan (ECP) seeking more time to hold elections to the posts of mayor, deputy mayor and other local government representatives in the absence of the commission’s four members.

The ECP had moved the applications on an appeal instituted by the Sindh government against a Feb 10 Sindh High Court judgement.

In the ruling on applications, filed by the Muttahidda Qaumi Movement (MQM) and Pakistan Muslim League-Functional (PML-F), the court had declared void recent amendments to the local government law — whereby secret balloting was replaced with a show of hands for electing mayors, deputy mayors and other local government representatives.

SC directs attorney general to explain delay in holding national, provincial assembly elections

The commission had also filed a similar application in a separate case, dealing with the conduct of elections, filed by Chaudhry Mohammad Ashraf Warraich.

Due to the absence of ECP members, by-polls in five different constituencies of the national and provincial assemblies have been postponed, creating a constitutional void.

Under Article 224 (4) of the Constitution, the election to fill a vacant seat of the National Assembly or the provincial assembly has to be held within 60 days of the seat falling vacant.

On Wednesday, the chief justice not only expressed concern over institutions that have become non-functional, but also took suo motu action on press clippings highlighting that the ECP was unable to perform the duties assigned to it under the Constitution and the electoral laws after the retirement of its members.

Consequently, different election processes, such as holding elections against vacant seats in the national and provincial assemblies, local government elections, notification of returned candidates and various other processes were not being completed and timelines provided for were not being followed, the Supreme Court noted.

Taking notice of the issue, the chief justice directed the court office to fix the matter in his court for Thursday and issued notice to Attorney General Ashtar Ausaf to justify the delay.

“This is all being done in connivance with each other; it is actually friendly fire,” the chief justice observed while regretting the delay in appointing members of the commission.

According to a petition moved by Mussayab Abbas Aurah before the Supreme Court, when the commission does not stand constituted because of the absence of members, the powers that are vested in the ECP are then delegated to the chief election commissioner (CEC).

Even rule-making powers are conferred on the CEC during the period when the commission does not stand constituted, the petition said, adding that there was no legal restraint or constitutional bar on the commissioner to hold by-elections within the statutory period of 60 days, the petition argued.

Any constituency cannot legally and constitutionally remain unrepresented, the petition maintained.

Published in Dawn, July 14th, 2016