ISLAMABAD The chief of Awami Muslim League and one of the aspirants for the NA-55, Rawalpindi seat, Sheikh Rashid Ahmed, won a legal battle on Wednesday when the Supreme Court set aside a Lahore High Court order and ordered the Election Commission of Pakistan (ECP) to proceed, from where it had left, with arrangements for holding by-election for the National Assembly in the important constituency.
“The Election Commission of Pakistan (ECP) is an independent constitutional body and not subservient to any executive authority which is bound to assist the commission in the holding of elections, therefore the order of the Lahore High Court (LHC) is set aside,” a three-judge bench comprising Justice Iftikhar Muhammad Chaudhry, Justice Mian Shakirullah Jan and Justice Ghulam Rabbani said.
The bench, which announced the judgment on an appeal of Sheikh Rashid challenging the LHC decision of postponing the by-election in the constituency, also observed that even parliament could not pass an order to clip powers of the ECP.
“Today the Supreme Court has upheld justice by throwing away whims of 'Takht-i-Lahore' which wasted nine months of the nation by resisting the election,” Sheikh Rashid, who won the seat five times, told reporters after the announcement of the judgment.
The seat fell vacant when PML-N member Haji Pervaiz Khan quit his parliamentary seat after failing to prove his innocence in an examination scandal.
The ECP notified acceptance of his resignation on May 25, 2009, and issued a schedule for holding by-election on Nov 27, but the Punjab government went to the high court which upheld its stance that the commission could not issue the notification without hearing (provincial government's) viewpoint.Acting ahead of the Supreme Court judgment, the PML-N awarded on Saturday the party ticket to its worker Shakil Awan.
The Supreme Court also issued on Wednesday a notice to the attorney general for Jan 6 on an identical petition of Syed Manzoor Gillani relating to the by-election in NA-123, Lahore.
At the outset on Wednesday, advocate Wasim Sajjad who was representing Sheikh Rashid read out a statement submitted by the Punjab government saying that the ECP should consult with the Punjab government before announcing the election date because there were threats to some political as well as religious personalities.
The ECP, the statement claimed, was aware of the fact that the law and order situation in the province was not conducive for holding elections because of incidents of terrorism had confirmed apprehensions of the provincial government.
However, the provincial government will not hesitate to hold elections and will make best possible efforts if the court issues such a directive.
The constituency has been without representation for many months, the counsel said, adding that when general elections could be held even after the assassination of former prime minister Benazir Bhutto or in Afghanistan or Iraq despite serious law and order situation in those countries, why not in the Punjab.
The counsel argued that the commission had always been an independent body and if the provincial government had any reservation, it should have approached the ECP, instead of the high court.
As per the command of Article 224(4) of the Constitution, the counsel said, by-elections should be held within 60 days of the occurrence of a vacancy but in the instant case the schedule issued for the election of NA-55 had been postponed with the intervention of the high court.
A cross objection of the ECP was also referred to during the proceedings which, it said, would hamper the decision making power of the commission to announce election schedules.
During the proceedings, Justice Shakirullah Jan inquired about the position of other provinces regarding by-elections and also asked if the Punjab government had postponed its other activities because of the law and order situation.
Newly-appointed Attorney General Anwar Mansoor said the ECP should be as independent as the judiciary if elections were to be held in an independent manner, adding that the election process could not be postponed.
The Chief Election Commissioner (CEC), the AG said, enjoyed a supreme status and he could not be made subordinate to a provincial government by seeking instructions.
In its order, the Supreme Court held that the command of the Constitution placed an obligation to organise elections and that observations of the high court had no jurisdiction at all and thus tantamount to making the commission subservient.
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