PESHAWAR: The Peshawar High Court on Wednesday set aside a notification of Election Commission of Pakistan (ECP) to suspend local bodies in Khyber Pakhtunkhwa until the holding of the provincial assembly elections.

A bench consisting of Justice Roohul Amin Khan and Justice Syed Arshad Ali pronounced a short order of accepting three identical petitions against the Feb 3 ECP notification, which stopped all elected local government ‘functionaries’, including mayors, chairmen and members of local councils from exercising their respective powers and functions until the provincial assembly elections were held in the province.

The detailed verdict in the case will be issued afterwards.

On Feb 28, the high court issued a stay order suspending the ECP’s notification until further orders.

Detailed verdict to be issued later

The petitions were filed by mayor of the Mardan city council Himayatullah Mayar, chairman of the Nowshera tehsil council Ishaq Khan Khattak, and chairman of Hassankhel tehsil council Hafeezur Rehman.

They requested the court to set aside the Feb 3 impugned notification insisting that the ECP had overstepped its powers by suspending the local bodies’ elected representatives.

Advocates Babar Khan Yousafzai, Noman Kakakhel, Malik Shehbaz and Ali Zaman appeared for the petitioners, while KP advocate general Amir Javed and deputy attorney general (DAG) Sanaullah represented the KP and federal governments, respectively.

Senior lawyers Barrister Mudassir Amir and Qazi Jawad Ehsanullah assisted the court as amici curiae.

The DAG contended that the ECP had issued the impugned notification under Article 218 of the Constitution under which it was the responsibility of the commission to make such arrangements as were necessary to ensure that the election was conducted honestly, justly, fairly and in accordance with law.

He stated that for holding free elections the ECP decided to suspend the local government functionaries so that they should not influence the polls. He informed that the local bodies’ functionaries were also suspended during the 2018 general elections by the ECP.

Justice Roohul Amin questioned whether the ECP had suspended the MNAs and MPAs while holding the local bodies’ elections.

The bench wondered whether those functionaries would be suspended whenever elections and by-elections were held.

It observed that they were the representatives of the people and that without suspending them, the ECP could hold polls in a transparent and fair manner.

Lawyers for the petitioners contended that local bodies were established under Article 140-A of the Constitution, so their suspension by the ECP amounted to suspending that Constitutional provision.

They argued that Article 140-A(2) of the Constitution bound the ECP to hold the elections of local bodies in terms of Article 140-A(1) read with the Elections Act and rules made thereunder.

The counsel said that under Article 218(3) of the Constitution, the ECP had the duty to organise and conduct elections without paralysing the rights of people to representation at local levels.

They challenged the contention that free and fair elections of a provincial assembly could not be held without suspending local bodies that comprised the people’s elected representatives.

The lawyers said that by that logic, the federal government as well as MNAs should also be suspended as they could use powers and resources at its disposal to influence the outcome of the provincial assembly elections.

Amici curiae Barrister Muddasir Amir and Qazi Jawad contended that the functionaries of local bodies were the creation of Article 140-A of the Constitution. They said that the ECP hadn’t given any cogent reason for suspending members of local bodies.

The amici curiae said that representatives elected under the Constitution couldn’t be suspended without any valid ground.

They referred to different judgements of superior courts and insisted that it was the duty of the ECP to conduct fair and transparent polls, but it couldn’t suspend the representatives of local bodies - the third tier of elected institutions.

Published in Dawn, March 9th, 2023