A two-member bench comprising Justice Saleem Khan and Justice Mohammad Raza Khan pronounced the order after hearing arguments of all the parties in 11 writ petitions related to recent amendment in the NWFP Local Government Ordinance, 2001, and disqualification of nazims and naib nazims by election tribunals in different districts.
A single bench on Tuesday had stayed the polls till 1.00 pm on Wednesday and referred the issue to the high court’s chief justice for constituting a larger bench. The bench had also stayed tehsil naib nazim polls in Battagram, Lower Dir and Malakand districts.
Advocate Abdul Aziz Qureshi appeared for one of the petitioners, Ms Saliba Khursheed, who is a district councillor and also one of the candidates in Peshawar. She had challenged the Local Government (2nd) Amendment Ordinance, 2005, through which amendment was made in Section 42 of the Local Government Ordinance, 2001, and the words “through secret ballot” were deleted.
Mr Qureshi argued that the amendment was illegal and unconstitutional. He stated that the mechanism of elections of naib-nazim had been changed and now it would be held through show of hands, which was illegal. He contended that the amendment amounted to placing restrictions on freedom of expression of the councillors.
He requested the court to stay the polls till final disposal of the writ petition.
The other 10 petitions were filed by elected nazims and naib nazims of different union councils in Battagram, Lower Dir and Malakand, who had recently been disqualified by the respective elections tribunals on the ground that they possessed sanads of seminaries.
Barrister Masood Kausar, Bashir Khan Tanghi and Akhundzada Ajmalzeb appeared for the petitioners and argued that the election tribunals had no authority under the LGO to deal with the issue of sanads.
They argued that under Section 152 read with Section 161 of the LGO, 2001, the powers were vested in the chief election commissioner and not the tribunal.
They requested the court to allow the petitioners to cast votes in the elections of naib-nazims.
The Deputy Attorney General Salahuddin Khan and NWFP Advocate General Mohammad Younas Tanoli appeared for the Election Commission of Pakistan and the NWFP government and contended that the amendments in the LGO was made in a legal manner.
They argued that the same amendment was made in the LGO in other three provinces. They pointed out that in similar fashion the elections of prime minister, speaker and deputy speaker had been held through show of hands.
About the issue of sanads, they argued that the petitioners were disqualified in accordance with the judgment of the Supreme Court.