Wednesday February 21, 2024

Holding LG election: ECP facing legal challenges after petitions filed in PHC

October 07, 2019

PESHAWAR: The Election Commission of Pakistan (ECP) is bound to hold fresh local government election within 120 days after completion of the four-year term of the government but this time the commission is facing legal challenges as a fresh election under the new law has been challenged in the Peshawar High Court (PHC).

Under the Elections Act, 2017 the ECP is bound to hold the election in 120 days. Currently, several writ petitions have been filed in the PHC by political party Jamaat-e-Islami (JI), opposition parties in the Khyber Pakhtunkhwa Assembly, KP Local Government Association and individuals about the drastic changes made to the KP Local Government Act, 2013.

The Khyber Pakhtunkhwa Assembly had on May 29 this year passed the KP Local Government (Amendment) Act, 2019. It made changes to the 2013 law, especially reducing the three-tier local government system to two tiers by abolishing the district level tier.

Through some of the writ petitions, the KP Local Government (Amendment) Act, 2019, was challenged on multiple grounds. On the other hand, an official of the ECP told The News that the ECP would continue its preparations as per the law. The first writ petition was filed jointly by JI through Senator Mushtaq Ahmad Khan and Member Provincial Assembly Inayatullah Khan. The second petition was jointly filed by leader of the opposition in KP Assembly Akram Khan Durrani and parliamentary leaders of different opposition parties. The third petition was filed by the president of Local Council Association (LCA), Himayatullah Mayar, who has twice served as district nazim of Mardan.

A few individuals also filed petitions related to these amendments. One of the petitions, different from others, has been filed by MPA Mahmood Ahmad Khan Bhittani for holding local government elections in the province beyond the 120 days stipulated time.

The petitioners requested the court to declare that no election process can be initiated under the Elections Act, 2017 in the absence of requirements of KP Local Government (Amendment) Act, 2019, which provides for completing the required administrative actions within six months. However, one of the grievances of the petitioners is common, especially the abolition of the district tier of the local governments.

The petitioners believed that the purpose of the impugned amendments was to devolve some of the powers of the district council and district nazim to the tehsil government, while the rest would be returned to the provincial government.

They say that the amended act was aimed at returning the control of many devolved departments to the government. Initially, under the KP Local Government Act (KPLGA), 2013, 24 departments were devolved to the districts.

However, through different amendments, eight of the departments were returned to the province. Now, under the impugned amendments only nine departments are left with the local governments.

The petitioners contend that once the departments were devolved to the local councils, the same could not be returned to the province.

Article 140-A was incorporated in the Constitution through the Constitution (Eighteenth Amendment) Act, 2010. Article 140-A (1) states: "Each province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government."

Similarly, sub-section 2 of Article 140-A provides that "Election to the local governments shall be held by the

Election Commission of Pakistan."

Ali Haider, who is counsel in Local Government Association petition, said the law provides for direct elections for electing members of the district and tehsil councils, unlike the previous ordinance under which nazims and naib nazims of a union council served as members of the district and tehsil councils, respectively.

He explained that instead of union council, the third tier in the present law was that of village/neighborhood council having 10 to 15 members, including: five to 10 Muslim members, determined on the basis of population, elected to general seats; two members elected to seats reserved for women; one member each elected to seat reserved for peasants and workers, youth and non-Muslims.

Another lawyer Khushdil Khan pointed out that in the previous law elections of all tiers were non-party based whereas in KPLGA the district and tehsil polls were party-based whereas that of village council were not party-based.

Now under the present amendments, he stated that the village/neighbourhood councils would be having seven members, including three on general seats, one each on seats for women, youth, peasants or workers and non-Muslims.

The chairman of tehsil council will be elected through party-based polls held on the joint electorate and the whole tehsil serving as a single constituency for that purpose. Moreover, all chairmen of village/neighbourhood councils will also serve as members of their respective tehsil councils.

The PHC bench comprising Justice Ikramullah Khan and Justice Sahibzada Asadullah has, so far, dismissed one petition from a citizen of Haripur seeking the poll delay on various grounds.

However, the legal experts said that the high court should decide the cases on an urgent basis so that the ECP has the time to start preparing for the next LG polls without any legal complications.