' IFTIKHAR MUHAMMAD CHAUDHRY, C J.---This petition has been filed under Article 184(3) of the Constitution:
2. The relevant facts as narrated in the above petition are that the Members of the Election Commission have not so far been appointed in pursuance of the Constitutional command introduced by 18th Amendment, although Pakistan, being an Islamic Republic and a democratic State, guarantees a democratic dispensation under its Constitution. Formation of an independent and viable Election Commission is sine qua non for the holding of a free, transparent and fair election. Despite immediate effectiveness of the amended Art.213 read with Art.218, the Election Commission has not been constituted to perform its function. The failure to constitute the Commission in accordance with the Constitution amounts to negation of the fundamental rights of the citizens of Pakistan. As such the petitioner has sought due adherence to the Constitution in the proper and lawful formation and functioning of the Commission, which cannot be denied. As per the petitioner, realizing this constitutional failure and deviation, he, as a citizen was left with no other alternative but to approach this Court with the following prayer:- " that respondents may be directed to perform their constitutional duty and functions of constituting the Commission in accordance with the Constitution and this Hon'ble Court may issue such other orders or directions as may be considered appropriate in the circumstances of the matter."
3. Notices were served upon the respondents. However, no one appeared on behalf of the Ministry of Law, Justice and Human Rights on 12th April, 2011, therefore case was postponed to 20th April, 2011,when the following order was passed:-- "No one has appeared on behalf of the Federation of Pakistan, the Ministry of Law Justice and Human Rights Division and the Speaker National Assembly despite service of the order dated 12-4- 2011 on 14-4-2011. Syed Sher Afgan, Joint Secretary has, however, appeared on behalf of Chief Election Commission and stated that Speaker National Assembly has constituted a parliamentary committee and according to his information/ knowledge the committee is going to promulgate its rules. He, however, states that he has no knowledge as to whether constitutional provisions relating to completion of the Election Commission are likely to be followed in the near future or not.
2. It is to be noted that command of the Constitution to complete the formation of the Election Commission is required to be fulfilled as early as could be possible. Learned Attorney General is also not in attendance. Hearing is adjourned enabling the respondents Nos. 1 and 2 to file concise statements clearly mentioning therein about the adherence to the Constitutional provisions for the completion of the Election Commission as it has been noted in the earlier order as above. To come up on 25th April, 2011".
4. Learned Attorney General has appeared on behalf of Federation of Pakistan but no concise statement has been filed. It is, however, informed by the learned Attorney General that in the meanwhile a Parliamentary Committee already constituted, has initiated the process for the appointment of the members of the Election Commission but so far no such appointment has been made. And that thereafter the constitutional requirement shall be fulfilled as early as could be possible. The learned Attorney General when reminded that amendment in the relevant Articles of the Constitution relating to the formation of the Election Commission, was made as back as on 20th April, 2010 and that the Commission was charged with duties enumerated in Article 219, he had no satisfactory reply to furnish. The provisions of Article 219 are reproduced herein below for convenience:-- "219. The (Commission) shall be charged with the duty of--
(a) preparing electoral rolls for election to the National Assembly and the Provincia' Assembly, and revising such rolls annually;
(b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and
(c) appointing Election Tribunals [;]
(d) the holding of general elections to the National Assembly, Provincial Assemblies and the Local Governments; and
(e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament).]"
5. It may be noted that within the terms of Article 218(2)(b) of the Constitution, the Commission shall consist of "four members, each of whom has been a Judge of a High Court from each Province, appointed by the President in the manner provided for appointment of the Commission in clauses (2A) and (2B) of Article 213". However, no person has yet been appointed as a Member of the Commission. It is not understandable how the above noted duties of the Commission, in particular those in clauses (a) & (b) of Article 219, are being performed. Where inaction of the State functionaries, their deviation or disregard or delay in the mandated performance of the functions under the Constitution are challenged; particularly on the parameters of the imperative demands in the Constitution, the courts have no jurisdiction to permit the State functionaries to remain static, inefficient, or lukewarm towards their constitutional duties. We may observe that non-adherence to the constitutional mandate is sure to entail serious consequences. Needless to state that in the past constitutional deviations led to very unpleasant results; and such situation cannot be afforded now. We are all bound to protect and preserve the Constitution in terms of our solemn oath. The executive, legislature and judiciary cannot avoid and depart from their constitutional duties. They, thus, essentially have to take appropriate steps for the preservation of the constitutional and democratic order in the State.
6. We regret to observe that despite pendency of the petition, issuance/service of the notices and passing of the orders (reference of which has been made hereinabove), the Election Commission is yet to become a reality in terms of the Constitution to carry out its mandated duties. With these observations we allow the petition. We reiterate that Non-completion of the Commission will be a deviation from the Constitution which cannot be allowed. The Constitution has to be strictly followed in its letter and spirit.