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July 14, 2018

SHC dismisses pleas against allocation of seats in Kashmore, Jacobabad and Shikarpur


July 14, 2018

The Sindh High Court has dismissed petitions challenging the allocation of national and provincial assemblies’ seats for Kashmore, Jacobabad and Shikarpur districts by the Election Commission of Pakistan.

Petitioners Ehsan Rehan Mazari, Haji Abdul Rauf Khoso and others had challenged the delimitations of constituencies for NA-196, NA-197, NA- 198 and NA-199 of Jacobabad, Kashmore and Shikarpur and the allocation of seats criteria by the ECP.

They submitted that the population of Kashmore and Jacobabad would be affected due to the impugned delimitations as the population criteria was not considered while drawing up delimitations of the National Assembly constituencies in Jacobabad, Kashmore and Shikrapur.

They also challenged the first proviso attached to Sub-Rule (2) of Rule (8) of the Elections Rules, 2017, which provides that the fraction of more than 0.5 may be counted as one seat and the fraction of less than 0.5 may be ignored. Their counsel argued that the impugned proviso is inconsistent with Sections 19 (1) and 20 (3) of the Elections Act, 2017 and the ECP acted beyond the compass and radius of Sections 19 (1) and Section 20 (3) of the Election Act, 2017, which only permits variation up to 10 per cent plus-minus whereas the impugned proviso allows variations to the higher limit.

It was further contended that the ECP has allowed an excess variation of 28 per cent of the population in District Jacobabad and a 39 per cent excess variation in District Kashmore, which is higher than the permissible limit of 10 per cent as provided in Section 20 (3) of the Elections Act, 2017.

They further said that it is a well-settled principle of law that rules cannot go beyond the act. They submitted that rules cannot create new rights or subjugate the rights created under the parent statute; therefore, the impugned proviso is inconsistent with parent statute, adding that the debasement of vote is caused when the weight of the vote is diminished.

They submitted that the ECP has radically disturbed the concept of uniformity of population by creating such irrational disparity and has made it difficult to conduct elections in an honest, just and fair manner; on the contrary, it amounts to committing gerrymandering.

The counsel for the ECP argued that it is the duty of the Election Commission to organize and conduct the elections and make such arrangements to ensure that the election is conducted honestly, fairly and in accordance with the law. He stated that the commission had the right to delimit territorial constituencies for elections of the National Assembly, provincial assemblies and local governments in accordance with the provisions of the constitution, the Elections Act, 2017 and Elections Rules 2017.

A division bench headed by Justice Mohammad Ali Mazhar had observed in judgment that the ECP in order to decide the population criteria had evolved a formula with the variation of 10 per cent plus-minus, but at the same time, a criteria or modality was also required to deal with the quota and benchmark of seat allocations to particular area/districts.

The court observed that the proviso under challenge only brings to life and comprehends a distinction that fraction of more than 0.5 may be counted as one seat which does not in any way disregard or transgress the provisions of the act.

It further observed that neither the proviso seems to ultra vires of the provisions of the Elections Act 2017 nor does it look like that the rule-making authority inserted the proviso with a mala fide intention nor the realms of the proviso seems to have travelled beyond the provisions of the Elections Act 2017 or is in conflict with or in derogation.

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