ISLAMABAD: The Supreme Court has sought legal assistance from the Election Commission of Pakistan (ECP) as well as the parties involved in a challenge to the Peshawar High Court’s Nov 2 short order declaring unconstitutional the holding of village and neighbourhood council’s local government elections on non-party basis.

Headed by Justice Umar Ata Bandial, a two-judge SC bench ordered placement of the petition moved by the Khyber Pakhtun­k­hwa government before a three-judge bench after postponing further hearing till November 30.

The petition was jointly moved on behalf of the KP government by the chief secretary, secretaries of local government, election and rural development and law, parliamentary affairs and human rights as well as the provincial assembly requesting the apex court to dismiss the high court order.

During the hearing, the Supreme Court wondered why the local government (LG) elections in KP could not be held on the party basis as had been done in other three provinces.

SC wonders why LG polls could not be held on party basis

KP Advocate General Shumail Butt informed the court that the PHC had ordered holding of the LG elections in the province on Dec 19 when at present there was no mechanism available for holding the polls in the province on party basis.

Instead of issuing directives for the schedule, the high court should have granted more time for holding the elections in the province, he said.

The court asked the province to wait for the detailed reasoning of the high court order and consider promulgating an ordinance for holding the LG elections on party basis in a similar fashion as had been followed by other provinces.

Through its November 2 short order, the PHC had declared the provision of the KP Local Government Act for holding elections of village and neighbourhood councils unconstitutional and directed the ECP and provincial government to hold the forthcoming polls on party basis as it was in conflict with Article 17 of the Constitution.

The PHC short order had also requi­red the election of tehsil, city councils, village, neighbourhood councils, the seat of mayor or chairman and members of village and neighbourhood councils of Malakand, Baja­­ur, Mardan, Swabi, Peshawar, Now­sh­era, Kohat, Karak, D.I. Khan, Bannu, Tank, Haripur, Khyber, Mohm­and, Charsadda, Hangu and Lakki Mar­­wat districts to be held as per the sche­dule issued by the ECP in letter and spirit.

The KP government pleaded in the petition that the PHC short order had focused solely on the non-party-based franchise. It argued that this point had never been agitated before the high court by the respondents or petitioners; besides, the KP government also did not assist the high court in this matter.

The petition said that in order to comply with Article 140A of the Constitution, which required the provincial governments to establish the LG system and devolve administrative and financial responsibility and authority to the elected representatives of the local government and take democracy to the grassroots level, the KP government had announced the schedule for LG polls.

But, the petition said, the provincial government was surprised to receive the court notice regarding the filing of the writ petition in the PHC, seeking a declaration that the KP Local Government (Amendment) Act 2019 was ultra vires of the Constitution.

Subsequently, the KP government filed para-wise comments and the case was heard at length and was decided by issuing the short order on Nov 2.

The petition argued that the short order had superimposed a single quasi national model for the LG election when its model may differ from local area but the philosophy of the ground realities of each area had been defeated by the PHC order.

Published in Dawn, November 26th, 2021