ISLAMABAD: The Supreme Court said on Tuesday it wondered why a constitutional body like the Election Commission of Pakistan (ECP) was coming to another constitutional body, the apex court, to seek permission for violating a constitutional obligation.
“I am shocked and find this argument absurd,” observed Justice Qazi Faez Isa, a member of the three-judge bench headed by Chief Justice Jawwad S. Khawaja.
The bench had taken up an ECP application seeking the court’s permission to hold local government elections in Punjab and Sindh in three phases, on Nov 14, 29 and Dec 19, instead of the earlier decided date of Sept 26.
At the last hearing on Aug 13, the Supreme Court had asked the ECP to come up with a concrete empirical data to justify each day of delay in the conduct of polls in the two provinces.
“Do I have the power to violate the constitutional obligation of holding the local government polls in the two provinces under Article 140A of the Constitution,” Justice Isa asked. At least as a judge, he said, he did not have the mandate to grant such permission.
The court observed in its order that it was for the ECP to conduct the elections under Article 140A. “Let the ECP perform its constitutional function,” it said, adding that the court had been informed by the ECP as well as the two provinces that they wanted to fulfil the constitutional mandate.
The order said that the two provinces had also assured the court that they would extend fullest support to the ECP in the conduct of the elections.
The court regretted that local government bodies in Punjab and Sindh had been lying dissolved for more than six years and, therefore, the constitutional obligation should be met.
Justice Dost Mohammad regretted that the previous provincial governments had spent their entire term and the present governments almost half the term without holding local government elections.
“The governments want to forward the legacy introduced by (late military dictator) Ziaul Haq of doling out development funds to members of the parliament and provincial assemblies which now they do not want to share with the representatives of the local governments,” he said.
Advocate Munir Paracha, representing the ECP, informed the court that the provinces had pointed out certain difficulties in holding the elections on Sept 26 and the commission had to keep these in mind. He argued that the constitution called for holding the local government elections but it did not say when these should be held.
Justice Isa reminded the ECP that it never begged the provinces for holding the elections rather commanded them to fulfil the requirement of the law and the constitution.
The chief justice suggested that it would be appropriate if the ECP also consulted the stakeholders – political parties – in the matter of holding the elections because they might come up with a new idea to make the polls possible.
While seeking permission for delaying the elections, the ECP had said the two provincial governments had proposed the holding of elections in three phases in view of the difficulties to be faced because of rains in the month of September and adverse flood situation in large parts of Punjab and Sindh.
Besides, practical difficulties will emerge if the polls are held on the same day in the two provinces because of shortage of resources and manpower as well as the requirement to maintain law and order. Moreover, the ECP said, September and October would coincide with Haj and Muharram respectively.
Lessons learnt from the holding of local government elections in Khyber Pakhtunkhwa in May which drew flak and became controversial for lack of transparency and allegations of rigging also forced the commission to consider holding the elections in Punjab and Sindh in phases.
Published in Dawn, August 19th, 2015
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