Abdul Hafeez Shaikh and Dr Asim Hussain. - File Photo

ISLAMABAD: The government suffered another blow on Monday when the Supreme Court ordered suspension of 28 members of the Senate and national and provincial assemblies elected in by-polls conducted by an Election Commission without meeting the criteria of the 18th Amendment.

Their membership will remain suspended till approval by parliament of the 20th Amendment to give constitutional cover to by-elections held in the absence of a properly-constituted ECP.

The government changed the status of some key cabinet members affected by the court’s order, including Finance Minister Hafeez Sheikh and Petroleum Minister Dr Asim Hussain, to advisers.

“We are disappointed; these members should have refused perks and privileges themselves when the parliament is yet to legitimise their election,” observed a special bench comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Khilji Arif Hussain, Justice Tariq Parvez and Justice Sarmad Jalal Osmani.

The bench issued the order during the hearing of petitions filed by Pakistan Tehrik-i-Insaaf chief Imran Khan and former prime minister Benazir Bhutto. Both have challenged the inclusion of bogus entries in the electoral roll putting a question mark on the credibility of the Feb 2008 general election.

The court said it had been exercising restraint since the passage of the 18th Amendment and pointed out that the Election Commission had not been constituted in accordance with constitutional rules, but no progress had been made. In such a situation, the functionaries could have voluntarily restrained themselves from performing functions till the constitution was amended.

“Essentially, when the voter’s lists were found bogus, the by-elections should not have been held,” the court observed. Those who will be affected by the order include three senators, nine MNAs and 11 MPAs.

Senators are: Abdul Hafeez Shaikh, Dr Asif Hussain and Syed Sajid Hussain Zaidi; MNAs: Chaudhry Asghar Ali Jutt (NA-167, Vehari-I), Jamshed Ahmed Dasti (NA-178, Muzaffargarh-III), Mohammad Akhtar Khan Kanju (NA-155, Lodhran-II), Sardar Muhammad Shafqat Hayat Khan (NA-68, Sargodha-V), Chaudhry Tassadaq Masud Khan (NA-100, Gujranwala-VI), Haji Khuda Bux Rajar (NA-235, Old Sanghar-II), Ms Khadija Aamir Yar Malik (NA-184, Bahawalpur-II), Sardar Mumtaz Khan (NA-61, Chakwal-II) and Awais Ahmed Khan Leghari (NA-172, D.G. Khan-II).

The MPAs are: Ghula Qadir Khan Bettani (PK-69, Tank), Muhammad Rashad Khan (PK-87, Shangla-I), Molvi Muhammad Sarwar Musakhel (PB-15, Musakhel), Saifuddin Khalid (PS-94, Karachi-VI), Syed Basit Ahmed Sultan (PP-259, Muzaffargarh-IV), Mian Muhammad Ajmal Asif (PP-63, Faisalabad-XII), Ahmed Mujtaba Gilani (PP-206, Multan-XIII), Sardar Meer Badshah Qaisrani (PP-240, D.G. Khan-I), Malik Saiful Malook Khokhar (PP-160 Lahore-XXIV), Ijaz Ahmad Kahloon (PP-34, Sargodha-VI) and Malik Ghulam Raza (PP-13, Rawalpindi-XIII).

At the outset of the proceedings, Chairperson of the National Assembly’s Standing Committee on Law Begum Naseem Akhtar Chaudhry requested for time, saying the constitutional amendment had been tabled in parliament.

But the court said it would not de-seat the elected members bout would issue an interim order. It postponed the hearing to Feb 21. The court observed that there were no two opinions that the by-elections had not been conducted by the commission under its constitutional mandate. The commission under Article 218 should comprise a chairman and one member each from the four provinces. “Unless a constitutional ratification is made subject to all exceptions, the members could not be regarded as elected representatives,” the bench said, adding: “This fact was earlier pointed out to the members. So much so Attorney General Maulvi Anwarul Haq candidly accepted that after April 20, 2011, it was the duty of the commission to fill up casual vacancies, and since it had not been constitutionally formed, the by-elections could not be held.”

The court said it could have passed an order but exercised restraint and referred the matter to the ECP. Unfortunately the issue was not taken up and after the lapse of considerable period, the matter was again heard on Dec 21, 2011, but no progress took place.

The bench noted that even on Monday no progress was made, except some efforts to place the 20th Amendment before parliament.

Meanwhile, the bench dismissed another application of Imran Khan requesting the court to stay the Feb 25 by-elections on six seats of the National Assembly and four of provincial assemblies.

The PTI chief sought the suspension of ECP’s Jan 27 notification about the schedule for by-elections.

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