HYDERABAD: A division bench of Sindh High Court, Hyderabad circuit, comprising Justice Mohammad Shafi Siddiqui and Justice Mohammad Faisal Kamal, disposed of a petition filed by a Pakistan Peoples Party (PPP) activist against rescheduling of the PS-52 Umerkot by-election to a date beyond the limit set under the Constitution.

In its order, the bench ordered strictly observing the [revised] schedule announced by the Election Commission of Pakistan (ECP). The seat has fallen vacant due to the death of MPA Ali Mardan Shah of PPP.

The petition was filed by information secretary of PPP’s Umerkot district chapter Burhanuddin. He was presented by Advocate Zamir Ghumro.

The counsel in his argument quoted Article 224(4) of the Constitution stating that “except for dissolution of national or provincial assembly, when a seat has fallen vacant not later than 120 days before term of assembly is due to expire, an election to fill seat shall be held within 60 days of occurrence of vacancy”.

He submitted in court that the vacancy was notified on Jan 22, 2020 and the first ECP notification announcing the schedule of a by-election was issued on Feb 12 fixing the polling date as March 17. Subsequently, he added, on Feb 13 a revised notification was issued fixing the date as April 15.

The counsel stated that the delay was shown to have been caused on account of administrative reasons with regard to ongoing work of revision of electoral rolls.

Deputy Attorney General (DAG) Humayoon Khan informed the bench that by-election date was extended on administrative grounds as mentioned in the revised notification. He said that originally, a public notice was required to be issued on Feb 14 which was being issued on Feb 29. He relied upon Article-254 of the Constitution whereby a failure to comply with time constraint requirement did not render the act invalid.

The bench noted that there was no cavil to this proposition that in terms of Article-224 of the Constitution the vacant seat had to be filled by holding a by-election within 60 days from occurrence of vacancy. It said that the vacancy was notified by provincial assembly secretary on Jan 22 and after a delay of 20 days, a notification for holding by-election in the said constituency was issued and polling was fixed for March 17. But on Feb 13, the schedule was revised for fixing polling for April 15.

It said that the excuse for delay as notified in the subsequent notification lost its force when the Umerkot district election commissioner issued a letter to the provincial election commission on Feb 8 stating that revision of electoral rolls 2019 to 2020, forms 15, 16 and 17, fresh CNICs and Section 34 of Elections Act 2017 had been completed and no work was pending. An excuse was thus not available to delay this process, it added.

In para-wise comments, they [respondents] raised an excuse stating that the extension in date was made on account of delayed printing of electoral rolls (perhaps ballot paper).

The bench said that such negligence could hardly be expected from an authority that was tasked to hold elections. “It seems office of provincial election commission took it lightly before announcing schedule on Feb 12. They made an excuse that on account of revision of electoral rolls it was delayed. Subsequent excuse of non-availability of printed ballot papers does not justify a delay as it demonstrate inefficiency on part of officials of provincial election commission,” the bench said.

It ruled: “Prima facie it shows slackness of PEC [provincial election commission] officials and we do not expect slackness or negligence on their part as these are very sensitive issues and ultimately lead to raising of eyebrows. We are of view that delay is not satisfactorily explained by DAG as it is not at all transparent hence we don’t consider it to be a legitimate excuse”.

The bench further ruled: “In terms of the revised schedule only three days are left for issuance of public notice and we [are] left with no other option but to enforce revised schedule strictly. Election be held strictly in terms of revised schedule and respondents shall be careful in future as no such delay shall be acceptable in compliance of Article 224 unless legitimate excuse is available in terms of Article 254”.

Published in Dawn, February 28th, 2020