• Sets aside BHC verdict on limits of constituencies; says objections to delimitations can’t be accepted once poll timetable issued
• Justice Masood asks why everyone wants elections to be delayed; Justice Minallah wonders how high
court could ‘assume’ ECP’s jurisdiction
ISLAMABAD: Setting aside a Balochistan High Court (BHC) decision, the Supreme Court on Monday held that delimitation of constituencies cannot be questioned after the announcement of the poll schedule by the Election Commission of Pakistan (ECP).
Headed by acting Chief Justice Sardar Tariq Masood, a three-judge SC bench thus effectively slammed doors of any possible delay in the general elections slated for Feb 8, 2024.
“I cannot understand why everyone wants to see elections be delayed,” Justice Masood wondered, adding: “Let the polls take place.”
Earlier on Dec 15, the SC had suspended a Dec 13 Lahore High Court verdict that had stayed the appointment of district returning officers, returning officers and assistant returning officers from the executive with a direction for the ECP to notify the election programme for conducting the polls on Feb 8.
On Monday, the SC bench comprising Justice Masood, Justice Syed Mansoor Ali Shah and Justice Athar Minallah took up an appeal moved by Gul Khan and Kamal Khan against the BHC’s Dec 12 decision regarding the delimitation of Balochistan Assembly’s constituencies PB-1 Sherani-cum-Zhob and PB-2 Zhob.
The appeal said the BHC had assumed the jurisdiction only to disturb the final delimitation of constituencies at a time when the election schedule was due to be announced within days and that it had proceeded in undue haste by passing a self-contradictory order.
The BHC’s decision came when the election schedule had not yet been announced by the ECP.
Earlier, respondents Saeedur Rehman and Malak Gul Zada had approached the ECP. They had objected to the preliminary delimitation of constituencies of PB-1 and PB-2 on Sept 27, with regards to the inclusion of patwar circle (PC) Abdullahzai in PB-2 and prayed for its exclusion from PB-2 and inclusion in PB-1.
On Nov 26, the ECP accepted Mr Gul Khan’s proposal suggesting exclusion of PC Abdullahzai from PB-2 and included it in PB-1.
The ECP notified the final delimitation of constituencies on Nov 30.
However, other respondents being aggrieved of the exclusion of PC Abdullahzai from PB-2 and its inclusion in PB-1 approached the BHC which allowed their petition through a short order issued on Dec 12.
The high court’s short order stated that for reasons to be recorded later, the petition is accepted and the Nov 26 ECP decision is declared void and of no legal effect.
The BHC had also ordered the ECP to issue final delimitation for both constituencies as pleaded by the respondents.
During the hearing, Justice Minallah wondered how the high court can assume the jurisdiction which lawfully lies with the ECP.
There will be a flood of petitions if the Supreme Court passed any order, Justice Minallah feared, adding everything else came to a halt once the election schedule was issued.
He also observed that the biggest test of ECP was to ensure free and fair polls on Feb 8.
Justice Shah observed that the electoral process cannot be disturbed only to grant relief to an individual, adding that challenges to constituencies became ineffective after the issuance of the election schedule.
“We have to draw a line and set a limit in this regard,” he emphasised.
The petition before the SC had pleaded that BHC cannot assume jurisdiction in view of the legislative intent not to disturb final delimitation just before the announcement of election programme as envisaged in Section 22(1) of the Elections Act, 2017.
The petition had asked whether the BHC by exercising jurisdiction under Article 199 of the Constitution could substitute its own findings with that of ECP and whether under the same article it could delve into factual controversies relating to homogeneity and other cognate factors pertaining to areas included in or excluded from a constituency.
Published in Dawn, December 19th, 2023
