In absence of notification issued by govt: ‘ECP not empowered to issue LG polls schedule’

ISLAMABAD: The Islamabad High Court (IHC) observed that the Election Commission of Pakistan (ECP) is not empowered to issue the election schedule for LG polls in the absence of a notification issued by the federal government.

A single bench of Chief Justice Athar Minallah on Tuesday made the observation while hearing a petition filed by Pakistan Muslim League–Nawaz (PML-N) and Pakistan Peoples Party (PPP) petition challenging the Commission’s notification regarding Islamabad LG elections.

Dr Tariq Fazal Chaudhry, president PML-N Islamabad chapter, Raja Muhammad Shakeel Abbasi, president PPP Parliamentarian, Islamabad Division filed the petition and cited the Federation of Pakistan through secretary Ministry of Interior, Federation of Pakistan through the secretary to the prime minister, and the ECP through the chief election commissioner as respondents.

During the hearing, the deputy attorney general informed that the notification, dated 19.10.2015, issued by the federal government regarding LG polls was withdrawn by the latter on 18.05.2021 and the ECP was informed vide letter, dated 20.08.2021 that the federal government had decided to re-determine the number of Union Councils in the Islamabad Capital Territory on the basis of population census, 2017 with an average of 20,000 individuals per Union Council.

The IHC bench was also informed that the Election Commission had completed the process regarding delimitation of 101 Union Councils as determined by the federal government and the formal notification was subsequently published in the official gazette under sub-section (1) of section 6 of the Islamabad Capital Territory Local Government Act of 2015 was issued on 13.06.2022.

The chief justice noted that the election schedule announced by the ECP was on the basis of a notification, dated 19.10.2015 and the said notification was admittedly, withdrawn on 18.05.2021.

He also noted that a plain reading of the Act of 2015 as a whole, prima-facie, shows that the statutory duty of the Election Commission to hold elections is subject to a notification issued by the Federal Government under sub-section (1) of section 6 of the Act of 2015 and the notification, whereby, 50 Union Councils were determined by the Federal Government was withdrawn and did not exist with effect from 18.05.2021.

Justice Minallah said that the court has also been informed that the delimitation process pursuant to the decision of the Federal Government on the basis of re determination of Union Councils has also been completed. “It, prima-facie, appears that schedule for holding elections is subject to the existence of a valid notification issued under sub section (1) of section 6 of the Act of 2015. The notification is a pre-condition for setting the wheels in motion,” he said.

The CJ further said; “It also appears that the Election Commission is not empowered to issue the election schedule in the absence of a notification issued under section 6(1) of the Act of 2015.”

He also said that the election schedule notified on the basis of a withdrawn notification, prima-facie, appears to be ultra vires the Act of 2015.

“As already noted, the earlier notification was withdrawn on 18.05.2021 followed by a decision and issuance of notification under section 6(1) of the Act of 2015 by the Federal Government whereby it has determined the number of Union Councils to be 101. The intent of the legislature appears to be unambiguous and, prima-facie, elections ought to be held pursuant to the notification issued by the Federal Government under sub section (1) of section 6 ibid,” maintained the IHC CJ.

He continued that the court, therefore, expects that the Commission will consider the intent of the legislature as discussed above and take appropriate decisions in order to give effect thereto. Later, the IHC bench deferred the hearing of the case till June 22 (today).

Copyright Business Recorder, 2022