KARACHI: UC vacancies must be filled within a year - SC
By Shujaat Ali Khan
KARACHI, March 21: By election to fill up a vacancy in a union council must be held within a year of its occurrence, the Supreme Court held on a federal government appeal recently.
The time-limit for holding a by poll might be extended to 18 months if the general election to local councils were due to be held within that period, a three-member bench observed while refusing the government and the Election Commission leave to appeal against a Sindh High Court judgment.
The impugned judgment allowed a writ petition moved by 10 registered of the Khairpur district against an EC decision to conduct a byelection to choose a naib zila nazim before filling up 104 union council seats that had fallen vacant in the district since the last local polls.
In fact, the EC had, on Sept 21, 2002, notified byelections to the 104 vacant seats of councillors. Even election staff had been appointed by the commission when the bypolls were postponed without assigning any reason or announcing a new date.
Meanwhile, the EC notified byelections to the offices of deputy nazims of the Khairpur, Jacobabad, Dadu and Thatta districts. The petitioners approached the high court for a writ of mandamus to the Election Commission to hold byelections to fill up the councillors' vacancies and cancel its notification for the deputy nazims' polls.
The SHC rejected the government plea that the filling up of the councillors' seats before nazim's or naib nazim's election was not essential under Section 148 of the Sindh Local Government Ordinance (SLGO), 2001, and accepted the petition.
Arguing the government's petition for leave to appeal against the SHC decision, Deputy Attorney-General Syed Zaki Mohammad informed the Supreme Court that the EC had already issued a schedule for by elections to the 104 councillors' seat lying vacant.
On merits, he said the explanation attached to Section 148 of the SLGO stipulated that 'all UC members notified as returned candidates' shall be deemed to be members of the electoral college for elections to the offices of nazim and naib nazim.
It was not necessary to fill up all the vacancies and the councillors notified at a given time would constitute the electoral college. As for the postponement of councillors' by elections, the law officer submitted that it was caused by the law and order situation.
In its order, the SC bench, which consisted of Chief Justice Nazim Hussain Siddiqui and Justices Syed Deedar Hussain Shah and Abdul Hameed Dogar, first reproduced the relevant SLGO Section 148(2), which reads: "The electoral college for the election of zila nazim and naib zila nazim and reserved seats for women, peasants and workers, and minorities in the zila council shall all be the members of union councils in the district, including union nazims and naib union nazims."
On its bare reading, the bench observed, "It is manifest on the face of it that the electoral college for the election of zila nazim and naib zila nazim shall consist of all members of the union councils in the district". It was in view of this provision that the EC had issued a notification for UC byelections in September 2002.
Referring to Section 156 of the SLGO, which deals with UC vacancies, it observed that a bypoll must essentially be held within a year. The period could be extended to a maximum of 18 months if local general elections were due.
The government explanation for not arranging the by elections was neither convincing nor justified. It was the government's responsibility to maintain law and order.
Depriving 104 councillors, who should have been elected within a year, of the right to vote in nazim's or naib nazim's election would be repugnant to the principle of adult franchise and the fundamental right of the citizens, it said.
