There was no provision of constitution or the law which required the Chief Election Commissioner to consult any executive authority in federation or in provinces before issuing schedule of by-election. This was clarified in a reply of CEC filed before a division bench of the Lahore High Court by Provincial Election Commissioner Punjab Syed Muhammad Tariq Qadri on behalf of CEC.
He also prayed to set aside verdict of the single bench deferring the by-election. The reply further said that under the constitution it was the responsibility of CECP to issue schedule for by-election to fill any casual vacancy in national or provincial assembly.
It said the article 220 of the constitution says that it shall be the duty of all executive authorities in the federation and in the provinces to assist the Commissioner and the Election Commission in the discharge of his or its functions.
"Even, otherwise, any encumbrance on the powers of the Election Commission/ Chief Election Commissioner with regard to the issuance of schedule or conduct of election or any other power, which has been conferred upon the Election Commission/Chief Election Commissioner under the constitution or the law will adversely affect their independence in the discharge of its or his functions," the reply added.
It was also feared in the reply, "if the practice of consulting or even extending an opportunity of hearing to any executive authority or any stakeholder before issuance of a schedule for by-election was allowed to prevail, this will tantamount to abridging powers of the election commission which will mar the very purpose and spirit of the provisions contained in chapter-VIII of the constitution."
Moreover, the reply said the CECP would challenge the verdict of the single bench of LHC by which the schedule of by-election was set aside and the Commission was directed to issue fresh schedule after affording opportunity of hearing to the Punjab government and others.
The Commission in its reply also prayed to the division bench to set aside the impugned order given by the single bench on October 9, last. Meanwhile, the court adjourned hearing of appeals till October 20 as the arguments of appellant's counsels were in progress.
The appeals were filed by Muhammad Azhar Siddique advocate, a candidate from NA-123, Lahore, Sheikh Rasheed Ahmad, candidate from NA-55, Rawalpindi and Manzoor Ali Gilani advocate, also a candidate from NA-123. The appellants said that the Punjab Government had no locus standi to file a writ petition seeking delay of by-election, as it was not an aggrieved party.
They said the whole election process was a matter between Chief Election Commission and the candidates while the governments were bound to carry out CECP directions. They argued that under article 224(4) of the Constitution when a seat in any assembly falls vacant, an election to fill the seat would have to be held within sixty days.
They said this constitutional provision was mandatory in nature but the single bench had overlooked it and passed a contrary order. They said the CECP was not constitutionally bound to consult/hear the any government prior to issuance of election schedule. The appellants further pleaded that the holding of bye-elections to fill casual vacancies cannot be postponed for indefinite period and the constituencies cannot be kept without represented.
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