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Election Commission of Pakistan refutes a news item regarding unconstitutionality of by-elections by Chief Election Commissioner

Islamabad: In response to a news item that appeared in print and electronic media about holding of by-elections by the Chief Election Commissioner as unconstitutional, the Election Commission has clarified the factual position as under to dispel any wrong impression because the preamble of Constitution of Pakistan makes it clear that state shall exercise its powers and authority through the chosen representatives of the people.

2. As regards the constitutionality and legality of holding by-elections after the Constitution (Eighteenth Amendment), Act, 2010, it is clarified that when a seat in the National Assembly or in the Provincial Assembly becomes vacant, an election to fill such seat is required to be held within 60 days from the occurrence of the vacancy in terms of clause (4) of Article 224 of the c\Constitution.

Moreover, section 108(2) of the Representation of the People Act, 1976 read with clauses (1) and (6) of Article 268 of the Constitution empowers the Chief Election Commissioner to fill such casual vacancies, which read as under:

“268. Continuation in force, and adaptation of certain laws.- (1)Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.

(6) Any court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptation have been made in such law by an Order made under clause (3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution.”

“108.   By-elections, etc.

(1)        X                      X

(2) For the purpose of holding an election to fill a casual vacancy in an Assembly, and, during the period when a Commission does not stand constituted for the purpose of section 107, reference in this Act to the Commission shall be construed as reference to the Commissioner.”

 

3- The above position was made public through a press release dated 16th July 2012 and no quarter ever questioned that why these bye-elections were held.

 

4- As the ECP remained incomplete soon after promulgation of Eighteen Amendment to the Constitution i-e 21st April 2010 till June 2011 and in the meanwhile 28 vacancies occurred in the Parliament and Provincial Assemblies, therefore, it was also unconstitutional not to fill these vacancies and deprive the people of these constituencies from representation in the aforementioned bodies.

5- It needs to be emphasized that neither any malafide intention, in favour or against anybody, was involved in filling these vacancies nor any quarter questioned the validity or filed any petition for suspending the process of these bye-elections.

6- Besides, the above view is also evident from the following table of 28 elected candidates that belongs to all parties including independent candidates:

Party Name Senate National Assembly  Provincial Assembly
PPPP  2  4  2
PML-N    –   2   5
PML   –  1   3
PML (F)   1   1     –
JUI (F)   –    –  2
MQM  –     –   3
Independent  –   1  1

7- In addition, when the Supreme Court of Pakistan asked this Commission to find out a proper solution, the ECP issued notices to the elected representatives, conducted proper hearings and passed a detailed order upholding these bye-elections but the Supreme Court did not accept this.

8- It is also worthwhile to mention here that in a similar situation the Supreme Court of India in a case (1978 AIR 851) has remarked that in such situations, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the matter. In such a situation, the ECP is expected to take all necessary steps to keep the democratic system intact.

9- Thus intellectual honesty demands that the issue should be looked at in its correct Constitutional perspective and any invalid grounds or unfounded motives should not be attributed to any authority for holding the bye-elections, nor the public representatives so elected should be deprived of the right to represent the people from their respective constituencies.

For more information, contact:

Election Commission of Pakistan (ECP)

Election Commission of Pakistan Secretariat

Election House, Constitution Avenue G-5/2, Islamabad

Tel: +9251 920 1975, +9251 920 6062

Fax: +9251 920 5402, +9251 920 5300

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