Supreme Court of Pakistan. – File Photo

ISLAMABAD: The Supreme Court’s directive to the Election Commission to postpone the Feb 20 by-elections has sparked a legal battle between the two constitutional institutions, with the latter accusing the former of meddling in its domain and the former defending its position.

On Tuesday, the Supreme Court issued a second clarification within 24 hours and explained that it was obligated to ensure that all organs of the state and authorities functioned in accordance with the spirit of law and Constitution.

The court issued the clarification to elucidate its position on a disagreement by Chief Election Commissioner Justice (retd) Hamid Ali Mirza, who had termed ‘unconstitutional’ the apex court’s Jan 19 order in which it had asked the Election Commission not to hold the Feb 20 by-elections on five National Assembly and one provincial assembly seats on the existing voters’ list.

The Supreme Court reasserted that the Constitution was very clear on the role of ECP in terms of annual preparation of error-free electoral rolls and holding of general as well as by-elections for the national and provincial assemblies.

On the other hand, a senior ECP official told Dawn that Article 224(4) of the Constitution envisaged holding of by-election within 60 days of a seat falling vacant. Similarly, he added, Section 26 of the Electoral Rolls Act of 1974 envisaged that electoral roll would never be said invalid for reason of any mistake therein or of omission of the name of any person entitled to be so enrolled or of inclusion of the name of any person not so entitled.

Section 29 of the act says no court can question the validity of electoral rolls prepared or revised under the act or legality or propriety of any proceedings or action taken thereunder by or under the authority of the commissioner or a registration officer.

The longish clarification mentioned a number of previous orders by the Supreme Court and recalled that during one of the proceedings the ECP secretary had said the process of revising electoral rolls taken up in Nov 2009 was still going on.

“Surprisingly, after a period of two years the ECP seems to be helpless in discharging its constitutional duty to the public of this country in preparing the electoral rolls, so they may go for polling on the basis of up-to-date, accurate and transparently prepared electoral rolls. It is one of the duties of the ECP to ensure free and fair elections in the country, which definitely is not possible unless the electoral rolls are revised and prepared accurately,” said one of the orders mentioned in the clarification.

Given the sensitivity of the issue and its far reaching implications for political and constitutional future of the country, it recalled that the late Benazir Bhutto had initially brought this issue before the apex court in 2007.

Subsequently, petitions of Mubasher Lucman and Imran Khan were entertained by the court keeping in view the importance of issue as it related to fundamental rights of the people of Pakistan.

It is pointed out, the clarification said, as per Article 51(2) and Article 106(2) of the Constitution, no person who was a citizen of Pakistan and was not less than 18 years of age could be deprived of his constitutional right of casting his vote because of non-appearance of his name on electoral rolls.

“Therefore, the Supreme Court is bound to ensure that this constitutional right of the citizen is enforced and it will always entertain petitions which directly impact the fundamental rights of the people and has the potential to effect the rule of law, the spirit of democracy and people’s right to have good governance in the country,” the clarification added.

It said: “Under Article 219, it is the command of the Constitution for the ECP to revise annually all electoral rolls. The smooth running of the democratic system is based on free and fair elections in the country and such elections can only be held if there is an accurate electoral list prepared with due diligence by the authorities concerned. “It should have been realised by the ECP that as per the requirement of the Constitution no deviation is possible except to prepare the accurate electoral list only. Be that as it may, it is the duty of the ECP to take necessary steps for the purpose of achieving the object of completion of the electoral list on or before Feb 23, 2012.”