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ISLAMABAD: The Supreme Court issued notice to the Election Commission of Pakistan (ECP) regarding holding of local government elections in 17 districts of Khyber-Pakhtunkhwa (KP).

A two-judge bench, headed by Justice Umar Ata Bandial, on Thursday, heard the KP appeal against the verdict of Peshawar High Court (PHC).

A larger bench of the PHC on November 2, 2021 had declared the provision of the Khyber-Pakhtunkhwa Local Government Act (KPLGA) for the holding of elections of village and neighbourhood councils unconstitutional and directed the ECP and the provincial government to hold the forthcoming polls on party basis. The bench gave one week to the political parties, which have filed petitions before the PHC, to submit impartial suggestions for holding village/ neighbourhood and tehsil councils’ elections on party base.

Justice Sajjad Ali Shah said it is the ECP responsibility to hold free and fair elections, adding if the Commission informs the bench that no further time is needed for holding the LGs polls then the matter would end.

Advocate General (AG) KP Shamail Butt said that according to the ECP schedule, the elections for village, neighbourhood and tehsil councils in 17 districts of KP will be held on December 19.

Justice Bandial inquired from the AG why LGs polls could be held on the party basis. The AG replied even if the provincial government agreed, but there is no provision in the Act for holding LGs election on party basis.

Justice Bandial then said why not the KP government enact an Ordinance for this purpose as the LGs polls in other three provinces are held on party basis, adding what is the problem for adopting the mechanism of other provinces.

The advocate general said it would be the first election, wherein, ballot paper will have the same symbol for three candidates.

It will be difficult for illiterate voters to distinguish which candidate he should vote for.

Kamran Murtaza, advocate said they accept that in a short time a mechanism for the party-based elections could not be developed.

He said the ECP has found the solution and already started printing the ballot papers.

Upon that Justice Sajjad questioned what solution was found? Justice Bandial said one solution could be to print the candidates’ pictures on the ballot paper.

The AG said the ECP can not do anything unless the provincial government changes the rules.

Justice Bandial questioned the amendment to which provision would enable the ECP to hold village council elections on party basis.

Earlier, the AG argued that the PHC has not given reasons regarding the matter.

Upon that Justice Bandial asked should the Court wait for the PHC’s detailed judgment.

The PHC struck down Section 27(2) of the Act, which envisages the holding of the elections of village council and neighbourhood council on non-party basis, and declared it in conflict with Article 17 of the Constitution.

The PHC had also declared unconstitutional Part-II of 11th Schedule to the KPLGA, amended through those amendments in 2019, to the extent of providing elections of village and neighbourhood councils on non-party basis and declared that as per the schedule of the Election Commission of Pakistan issued on October 25, those polls should be held on party basis.

Local Government Act 2013 was substituted vide Khyber-Pakhtunkhwa Local Government (Amendment) Act No XXV of 2019 which squarely falls beyond its domain? The KP appeal states that whether the PHC has not lost sight of interpretation of Article 17 of Constitution by failing to take into regard that the said article is not directory or mandatory for holding the election on party basis, rather the same only directs the right of forming a political party or inclusion therein as a member.

Copyright Business Recorder, 2021

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