ISLAMABAD: The Election Commis­sion of Pakistan (ECP) on Tuesday approached the Supreme Court against the Peshawar High Court’s order postponing the second phase of local government (LG) elections in Khyber Pakhtunkhwa.

The ECP appeal is expected to be taken up today (Wednesday) by a two-judge SC bench headed by Justice Ijaz-ul-Ahsan.

The PHC’s Abbottabad bench had, in a verbal order on Feb 1 postponed the elections after accepting petitions of the residents of five districts of KP on the grounds that these districts were expected to remain under snow in the last week of March due to heavy snow accumulation and, therefore, it would not be possible to set up polling stations, dispatch polling staff and procure requisite record and other instruments.

Initially, the second phase of LG polls in 18 districts of KP was to be held in the last week of January, but it was rescheduled by the ECP through a Dec 30, 2021 order on applications filed by local MNAs and MPAs.

Two-judge SC bench likely to take up commission’s appeal today

On Jan 20 this year, the ECP had issued a notification announcing the holding of second phase of LG elections in KP on March 27.

Advocate Afnan Karim Kundi, representing the ECP, has sought leave to appeal against the PHC’s Feb 1 verbal order, arguing that the written judgement to be announced by the high court soon would not be in accordance with the facts and the law and, therefore, liable to be set aside.

The appeal contends that the PHC order impinges upon the independence of the ECP in holding the LG elections under Articles 219(d), 222(d) and 222(f) of the Constitution, read with Section 219 of the Elections Act 2017.

The verbal order, the appeal argues, unduly interferes with the ECP’s exclusive and specialised domain of conducting local government elections, including the announcement of the election programme — the date of election and the schedule for different activities starting from the issuance of public notice by returning officers inviting nomination papers until the polling day and consolidation of the results.

“Moreover, the high court could not substitute its decision over the discretion of the ECP in announcing the election programme, especially when the same had been announced with the consent of the provincial government and after holding proper hearing on the applications of the local MNAs and MPAs and accepting their request for postponing the elections from January to the end of March 2022, just before the advent of the holy month of Ramazan,” the appeal contends.

It says the high court had failed to appreciate that the commission was mandated to hold the LG elections within 120 days of the expiry of the term of the previous local government under Section 219(4) of the Elections Act whereas the LG elections in KP were already considerably delayed much beyond the 120-day statutory period.

“The high court order is also in direct conflict with the directives of the Supreme Court passed from time to time for the timely holding of elections without any judicial intervention regarding the election programme determined by the ECP,” the petition states.

The ECP emphasises that the high court order is liable to be set aside being in violation of Article 10A of the Constitution and the established norms of the judicial proceedings denying a meaningful opportunity of representation and hearing to the commissioner so much so that the writ petition was decided on the very first hearing without issuing any notice or seeking comments from the ECP and merely marking the presence of the law officer of the commission who had no instructions from the ECP.

“Moreover, the oral order is a recent innovation as the law commands and prescribes the announcement of a judgement in a particular manner. Even after the oral announcement of judgement, the high court is duty bound to provide certified copy of the order to the aggrieved party,” the petition contends.

“But non-signing or writing and non-provision of the certified copy of the order to the aggrieved party will amount to frustrating the jurisdiction of the superior court as the aggrieved party may assail the same before the higher forum exercising its legal right,” the appeal argues.

Judges appointed

President Dr Arif Alvi on Tuesday approved appointment of three additional judges in the Peshawar High Court.

Kamran Hayat Mian Khel, Mohammad Ijaz Khan and Mohammad Fahim Wali had been appointed additional judges in the high court for one year, said an announcement made by the Presidency.

The appointments have been made under Article 175 of the Constitution.

Published in Dawn, February 9th, 2022

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