ISLAMABAD: The Supreme Court on Wednesday suspended the Peshawar High Court’s (PHC) order postponing the second phase of local government (LG) elections in Khyber Pakhtunkhwa.

A two-judge SC bench consisting of Justice Ijaz-ul-Ahsan and Justice Ayesha A. Malik also ordered issuance of notices to the respondents in the case — the KP chief secretary, secretary of the Coordination Unit of Local Government Election and Rural Deve­lopment Department, Fida Mohammad and Gul Badshah — before adjourning the hearing till Feb 14.

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.

ECP plea says PHC order in conflict with SC directives on timely elections

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.

On Wednesday, Advocate Afnan Karim Kundi, the counsel for the ECP, argued that the commission had received a notice for the Feb 1 proceedings before the PHC after the hearing date when the high court had already postponed the process for holding LG polls. Besides, he added, the high court had postponed the elections in 18 districts of KP when petitioners from five different districts approached it.

Earlier, the ECP had 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 contended that the PHC order impinged 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 argued, unduly interfered 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 contended.

It said 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 stated.

The ECP emphasised that the high court order was 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 was duty bound to provide certified copy of the order to the aggrieved party,” the petition contended.

“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 argued.

Published in Dawn, February 10th, 2022

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