ISLAMABAD: In light of an earlier court order directing the election watchdog to conduct elections within 24 hours, the Islamabad High Court (IHC) has sought assistance from stakeholders regarding its jurisdiction over the Election Commission of Pakistan (ECP).

A division bench comprising Chief Justice (CJ) Aamer Farooq and Saman Rafat Imtiaz was hearing appeals of the federal government and the ECP against the directives of a single-member bench that had asked the commission to conduct elections within one day.

CJ Farooq cited the judgement of a division bench headed by former chief justice Athar Minallah passed in the prohibited funding case against the Pakistan Tehreek-i-Insaf (PTI). A division bench hearing PTI’s appeal against an order of a single-member bench observed that the IHC could not issue directions to ECP as the commission was a constitutional forum.

At the outset of the hearing, the ECP’s legal team headed by advocate Mian Rauf was present in the courtroom. However, the law officers of the federal government were absent, which utterly surprised the bench. As the hearing proceeded, the government’s legal team headed by Additional Attorney General Barrister Munawar Iqbal Duggal joined the proceedings.

Govt lawyer says IHC could set aside order, but could not issue directions to watchdog

During the course of arguments, the bench noticed that neither the counsel for the federal government nor the ECP lawyer pointed out any provisions related to the problem of issuing directions to the ECP. At this, Barrister Duggal argued that the ECP was an independent forum and added that the IHC could set aside the decision, but it could not issue directions to the watchdog.

The court asked the ECP director general, Mohammad Arshad, to explain the consequences of setting aside the government’s notification concerning an increase in union councils and ECP’s decision regarding the postponement of the LG elections. The DG replied that in such a case, the commission would deliberate upon the court order and would have issued a fresh schedule to conduct elections on 101 UCs. The court issued notices to the petitioners - PTI and JI - and adjourned the hearing till Jan 9.

Local govt elections

The LG elections in 101 UCs were due on Dec 31, however, the government on Dec 19 increased the number of UCs from 101 to 125. The ECP on Dec 20 rejected the government’s decision. Following the decision of the IHC on Dec 23, it heard the stance of the federal government and postponed the elections. The PTI and Jamaat-i-Islami (JI) challenged the order before the IHC.

IHC’s single-member bench set aside the notification on Dec 30 and directed the ECP to hold LG polls on Dec 31. The commission and the federal government challenged this order before the division bench and termed the ruling ‘impractical’.

The court was also told that the ECP on Dec 28 also heard the aggrieved voters against the incorrect electoral rolls and advised them to approach the returning officers concerned for rectification.

It may be mentioned that nine UCs through their counsel, Raja Inam Ameen Minhas, filed petitions against incorrect electoral rolls. According to the petitions, as many as 10,000 voters have erroneously been registered in other than their own UCs.

Appeal against IHC order

The government in its appeal stated that the single-member bench “has proceeded in haste to pass the impugned order…as writ petitions [of PTI and JI] were instituted on Dec 28 and were taken up for hearing on the same day and [court] issues notices to the Respondents for Dec 29 for taking up at 2:30pm.”

The appeal said that the federal government was not given adequate time to file a written reply to these petitions and issued a judgement in this matter.

The ECP contended that the constitution empowered the commission to “organize and conduct elections and also to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with the law.”

Published in Dawn, January 3rd, 2023