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ISLAMABAD: The Islamabad High Court (IHC), Friday, directed the Election Commission of Pakistan (ECP) to notify the delimitation of two National Assembly (NA) constituencies afresh.

A single bench of IHC comprising Chief Justice of IHC Justice Aamer Farooq conducted hearing of a petition moved by Ijaz Mehmood through his counsel Umar Ejaz Gillani advocate and cited the ECP as respondent.

The IHC bench said in its order, “Decision of ECP to the extent of Constituencies NA-35 & NA-36 is set aside and the matter is referred back to the ECP, which shall decide the issue afresh after hearing everyone concerned.”

The petitioner moved the court against the decision dated 26.11.2023 passed by the ECP with respect to National Assembly constituencies NA-35 & NA 36 of District Kohat.

Counsel for the petitioner contended that the impugned decision is in violation of the provisions of section 20(3) of the Elections Act, 2017 (the Act) as well as proviso to it incorporated through 2nd Amendment Act, 2023 and Rules 10 and 11 of Election Rules, 2017 (the Rules).

He submitted that with respect to the variations in the two seats of the Assembly, same can be +5 per cent or -5 per cent, but here in the variation in the seats is much more inasmuch as population of NA-35 is 1,234,661, whereas, of the other areas, it is much less or even in some cases, is higher.

The petitioner submitted that variation can be brought within the range, if certain area is carved and joined with NA-36, which is cross-district constituency and would make the variation in accordance with law. He added that if the proposal is accepted then population of NA-36 would be 1,062,463 and would comprise Hangu, Orakzai and Dera Adam Khel and the population of NA-35 Kohat would be 1,088,616.

Opposing the contention by the counsel for the petitioner, counsel for ECP contended that if the suggestion of the petitioner was to be accepted then the entire delimitation process shall be disturbed. He argued that relevant law only suggests that variation should be +5 per cent or -5 per cent as much as possible. He further said that carving out of areas into NA-36 is not practically feasible as it would defeat the principles laid down in Section 20 and Rules 10 and 11 ibid.

Justice Aamer observed that the principles of delimitation are provided in section 20(1) of the Act, which provides that all constituencies for general seats shall, as far as practicable, be delimited having regard to the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies.

He noted, “Subsection (3) of section 20 ibid provides for variation in population of constituencies of an Assembly or a local government shall not ordinarily exceed ten percent. Under Rule 10 of the Rules, proviso to sub-rule (5) states that variation in population between two more constituencies shall not ordinarily exceed ten percent and the delimitation committee shall record reasons, if variation has to exceed the limit.”

“The stance of the ECP that same variation is to be between within the district is found in 1st proviso but not in section 20 (3) ibid. It is a fact that section 20(3) talks about only the variation in the assembly and not really about number of seats in a District which is mentioned in the Rule. It is natural that in case of any contradiction, provisions of the Act would prevail over the Rules,” added Justice Aamer.

The IHC chief justice further said that the ECP has not addressed this anomaly while deciding objections though it does not take into account the broader picture but only asks for adjustment in two districts.

It is only appropriate that ECP should revisit the issue and give authoritative pronouncement on the same as to remove anomaly or ambiguity with respect to the interpretation of section 20(3) and proviso to Rule 10 (5) of the Rules.

Copyright Business Recorder, 2023

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