Detailed order on ICT poll: ECP proposes changes to Constitution, Election Act

ISLAMABAD: The Election Commission of Pakistan on Wednesday released a 14-page order on the postponement of local government polls, proposing amendments to the Constitution and Elections Act, 2017, to ensure that the process is held smoothly in the future.

A day earlier, the ECP’s five-member full bench conducted a hearing in the light of the Islamabad High Court order and finally decided to postpone the LG elections in Islamabad, for which polling was due on December 31.

“We have concluded that in terms of Article 140-A(1) of the Constitution of the Islamic Republic of Pakistan, the federal government is competent to establish a local government system and devolve political, administrative, and financial responsibility and authority to the elected representatives of the local governments.

“Likewise, in terms of sub-section (1) of Section 6 of the Islamabad Capital Territory Local Government Act, 2015, the determination of number of union councils within the Islamabad Capital Territory is the mandate and prerogative of the federal government, and thereafter the election commission has to delimit the constituencies after such demarcation.”

However, in its two-page order, issued last week on the heels of a federal government notification increasing union councils from 101 to 125, the commission said this measure was taken without the concurrence of the Election Commission of Pakistan, which was required under Section 4(4) of the Islamabad Capital Territory Local Government Act 2015. “The federal government may, with the concurrence of the commission, alter the limits of a local area under this section after the initiation of proceedings for the delimitation of constituencies by the commission, but the government shall not alter the limits of a local area after the announcement of the election schedule for polls in the local area.”

The commission said in its order of last week that now, therefore, the commission, in the exercise of its powers under Article 140-A (2), Article 218 (3), Article 219 (d), and Article 220 of the Constitution read with enabling provisions of law, hereby decides to continue the election process notwithstanding the notification of December 19, 2022, of the federal government, which violated Section 4 (4) of the Islamabad Capital Territory Local Government Act, 2015.

Whereas, the latest order issued on December 28 also says: “The commission is mindful of its duties enshrined in Article 218(3) of the Constitution as well as in the landmark judgment reported as PLO 2012 SC 681 (the Workers Party case), wherein duties and powers of the election commission have elaborately been discussed.

“The commission has always made efforts to conduct free, fair, and transparent elections, which is its constitutional and legal mandate. It is pointed out that the federal and provincial governments take advantage of Section 219(1) of the Elections Act, Act, 2017, whereby it is mentioned that the commission shall conduct local government elections under the applicable local government laws. The commission has already proposed certain amendments to the Constitution and the Elections Act, 2017 so that local government elections may be conducted on time without any delay and not be delayed by the provincial governments on one pretext or another. It is once again being proposed to the federal, provincial governments, and the parliament to make necessary amendments to Article 140-A of the Constitution and Section 219 of the Elections Act, 2017, so that Local Government Laws should not be amended near the conduct of local government elections, or at least such late amendments should not apply to the immediate next elections.

“The commission was informed that the parliament had passed a bill amending Section 12 of the ICT Local Government Act, 2015 (X of 2015). The commission took note of the amendment to Section 12 of the Act ibid., which provides that the mayor and deputy mayor shall be directly elected as joint candidates by the voters and that the said election shall be held on the day of the election of members of union councils under Section 11 of the Act ibid. The bill has been sent to the president for assent under Article 75 of the Constitution. At this stage, the commission is unable to conduct elections of mayor and deputy mayor as per the new legislation on December 31, 2022, because no schedule for the election of mayor and deputy mayor has been issued by the commission. “Under the amended law, the election commission is required to hold elections on the same day for all categories, including the mayor and deputy mayor.” what has been discussed above, we have concluded that, in terms of Article 140-A(1) of the Constitution of the Islamic Republic of Pakistan, the federal government is competent to establish a local government system and devolve political, administrative, and financial responsibility and authority to the elected representatives of the local governments. Likewise, in terms of sub-section (1) of Section 6 of the Islamabad Capital Territory Local Government Act, 2015, the determination of several union councils within the Islamabad Capital Territory is the mandate and prerogative of the federal government, and thereafter the election commission has to delimit the constituencies after such demarcation. Therefore, keeping in view the legal provisions and the judgment of the Honourable Islamabad High Court dated December 23, 2022, referred supra regarding the subject matter, and while exercising the powers under Article 218(3) of the Constitution read with Rule 11(2) of the ICT Local Government (Conduct of Elections) Rules, 2015, Section 58 of the Elections Act, 2017, and all other enabling provisions, the ECP hereby postpones the local government election in the Islamabad Capital Territory scheduled to be held on December 31, 2022, for the time being.

“The fresh schedule will be issued in due course,” it concludes.