Local govt department challenges proposals of ECP for creation of new LG constituencies

KARACHI: The Sindh local government department on Tuesday moved the Sindh High Court against the proposals of the provincial election commission for creation of new local government constituencies.
Being aggrieved with the proposals sent by the provincial election commissioner whereby the provincial government was asked to notify certain areas to be new union councils, excluding and including certain areas from one council to another council and many other proposed changes, the secretary of local government submitted that such proposals were against the orders of the SHC in the delimitation case.
It is pertinent to mention here that the PECP has directed the Sindh government to undo the changes made in the list of constituencies of union councils and wards by altering the urban areas to rural UCs and wards for the upcoming local government elections in the province.
The local government secretary submitted that the provincial election commissioner had violated the provisions of Section 10, Schedule-I, Part-C of the Sindh Local Government Act whereby the population of a union council should be between 10,000 and 15,000 but in case of the newly proposed union council Mithiani, the population criteria becomes 22,199, UC Khair Shah 18,267, Abdul Hasan 17,690 and also many other union councils have been newly created and certain areas excluded or included in the limits of councils in violation of Section 10(1) of the Sindh Local Government Act.
The proposal of the provincial election commissioner of Sindh will disturb the election process and cause delay in the process of local government elections to be held on October 30, November 19 and December 3. The government feared that by creation of new councils and alteration and addition of areas in certain councils the contesting candidates will lose interest and many areas will be without the candidates and the areas of many candidates will be changed against their will and interest. “This exercise will create havoc in the election process resulting in a lot of complaints and petitions,” the petitioner feared and questioned the formal approval from the Election Commission of Pakistan as the proposal has been floated in a haphazard way without following the provisions of the law and the judgment of the SHC.
The secretary of the local government submitted that creation of new union councils or alterations made by the provincial election commissioner would not only delay the elections but would also make the process of local government elections controversial as the high court had already ordered that no fresh nominations to contest the elections can be allowed in any council, boundaries of which were revised by the election commissioner.
He submitted that since new union councils/wards have been created by the provincial election commissioner the possibility of electing from such union councils/wards cannot possibly arise since no one had submitted nomination papers for such areas and by virtue of the court order, no fresh nominations can be allowed.
He submitted that such an exercise if not stopped forthwith will serve to disenfranchise the people of that particular area and deprive them from the right of electing their own local government which will not only be a violation of Article 140A but also that of Article 25 of the Constitution. He said that even if fresh nominations are allowed for such areas, the election due to shortage of time would not be held as per schedule since the process of filing nomination papers, scrutiny and allotment of symbols necessarily requires at least 24 to 26 days.
Besides, he submitted that new proposed constituencies created by the provincial election commissioner are also in blatant disregard of the delimitation Act since no territorial and population compactness as well as public convenience has been considered. He alleged that the commission has not only violated the judgment of the court but has also started fresh delimitation in the constituencies which are not even disputed under the previous litigation. On the contrary it has carved out new constituencies including wards and union committees without having a mandate of the law and the permission of the court.
It was submitted that if fresh but illegal delimitation carried out by the ECP is accepted it will amount to doing away with and circumventing the judgment of the court. Being violation of the law and the Constitution itself besides it will be a violation of the Supreme Court’s judgment in the local bodies’ case as new areas and constituencies shall go without any representation. He said that if the proposal of the commission is accepted it would open a Pandora’s box for the petitioner as without adhering to the provisions of the Act and without calling the objections, a fresh notification under the provisions of sections 10, 13 cannot be issued by the government. The secretary said that it was already held by the court that power to determine the number of wards, UCs, MCs, DMCs, is the domain and authority of the government and the delimitation of the constituencies is the domain of the ECP but in the instant case the ECP did not adhere to such mandatory requirements of the law, but it rather by-passed them.
The local government prayed to the court to declare the proposal sent by the ECP and the PECP regarding delimitation of the constituencies as unlawful and liable to be struck down and in the meantime suspend the operation of the illegal and unlawful proposal till final decision of the petition.
The SHC on September 18 had observed in the judgment that the functionaries of the Election Commission of Pakistan did not adhere to the guidelines with regard to the territorial unity, distinction between urban and rural areas in several constituencies while carrying out delimitation of local bodies’ constituencies.
Issuing a short order on the petitions against the delimitation process of local bodies’ constituencies, the SHC’s division bench headed by Chief Justice Faisal Arab observed that apparently it seemed to have been done in an arbitrary manner and to facilitate “gerrymandering”.
The court observed that as the election schedule has been announced therefore in order to correct only patent irregularities, without disturbing the polling schedule, only such alteration and modifications be allowed in those constituencies which the election commission can carry out expeditiously in exercise of its power conferred under Section 10 (A) of the Delimitation of Constituencies Act by only looking at the existing boundaries of a disputed constituency.
The court directed the ECP, while conducting the exercise of impugned delimitation of a council, if it appears that territorial unity was not maintained then the limits of such council shall be so adjusted in order to bring it in consonance with the established criteria of delimitation as provided in Section 10(3) of the Sindh Local Government Act, 2013.
The court observed that the areas of a council which were rural at the time when the Supreme Court issued the short order on March 20, 2014 but were subsequently annexed with any council of an urban area or vice versa, through the process of impugned delimitation the same shall be undone and fresh delimitation shall be carried out within five days.
The court observed that no fresh nominations to contest election can be allowed in any council, boundaries of which are revised by the election commission pursuant to this order of the court.
The court made it clear that as the process of the elections of the local government was to be completed on the schedules already announced in terms of Supreme Court’s judgment, the election schedules in no circumstances shall be disturbed on the basis of the order of the court. The court, however, observed that initiation of the process of delimitation of the constituencies for local government election through notifications issued by the provincial government under Section 10 of the Sindh Local Government Act, 2013 and 10(3) were within the confines of the SLGA, 2013.