ISLAMABAD - The Islamabad High Court (IHC) Tuesday observed that the Election Commission of Pakistan is not empowered to issue the election schedule for LG polls in the absence of a notification issued by the federal government.
A single bench comprising Chief Justice of IHC Justice Athar Minallah made this observation while hearing a petition filed by Pakistan Muslim League – Nawaz (PML-N) and Pakistan People’s Party’s (PPP) petition challenging the Commission’s notification regarding Islamabad LG elections. During the hearing, the Deputy Attorney General in response to a query informed the bench that notification, dated 19.10.2015, issued by the Federal Government regarding LG polls was withdrawn by the latter on 18.05.2021 and the ECP was informed vide letter, dated 20.08.2021 that the Federal Government had decided to redetermine the number of Union Councils in the Islamabad Capital Territory on the basis of Population Census 2017 with an average of 20,000 individuals per Union Council.
The IHC bench was also informed that the Election Commission had completed the process regarding delimitation of 101 Union Councils as determined by the Federal Government and the formal notification was subsequently published in the official gazette under sub section (1) of section 6 of the Islamabad Capital Territory Local Government Act of 2015 was issued on 13.06.2022. The IHC Chief Justice noted that the election schedule announced by the ECP was on the basis of notification dated 19.10.2015 and the said notification was admittedly withdrawn on 18.05.2021. He also noted that a plain reading of the Act of 2015 as a whole, prima-facie, shows that the statutory duty of the Election Commission to hold elections is subject to a notification issued by the Federal Government under sub section (1) of section 6 of the Act of 2015 and the notification whereby 50 Union Councils were determined by the Federal Govt was withdrawn and did not exist with effect from 18.05.2021.
Justice Athar said that the court had also been informed that the delimitation process pursuant to the decision of the Federal Government on the basis of redetermination of Union Councils had also been completed.
“It, prima-facie, appears that schedule for holding elections is subject to existence of a valid notification issued under sub section (1) of section 6 of the Act of 2015. The notification is a pre-condition for setting wheels in motion,” said Justice Athar.
He added, “It also appears that the Election Commission is not empowered to issue the election schedule in absence of a notification issued under section 6(1) of the Act of 2015.” He further said that the election schedule notified on the basis of a withdrawn notification, prima-facie, appears to be ultra vires the Act of 2015. “As already noted, the earlier notification was withdrawn on 18.05.2021 followed by a decision and issuance of notification under section 6(1) of the Act of 2015 by the Federal Government whereby it has determined the number of Union Councils to be 101. The intent of the legislature appears to be unambiguous and, prima-facie, elections ought to be held pursuant to the notification issued by the Federal Government under sub section (1) of section 6 ibid,” maintained the IHC CJ.
He continued that the court, therefore, expects that the Commission will consider the intent of the legislature as discussed above and take appropriate decisions in order to give effect thereto.
Later, the IHC bench deferred the hearing of the case till June 22 (today).
A single bench comprising Chief Justice of IHC Justice Athar Minallah made this observation while hearing a petition filed by Pakistan Muslim League – Nawaz (PML-N) and Pakistan People’s Party’s (PPP) petition challenging the Commission’s notification regarding Islamabad LG elections. During the hearing, the Deputy Attorney General in response to a query informed the bench that notification, dated 19.10.2015, issued by the Federal Government regarding LG polls was withdrawn by the latter on 18.05.2021 and the ECP was informed vide letter, dated 20.08.2021 that the Federal Government had decided to redetermine the number of Union Councils in the Islamabad Capital Territory on the basis of Population Census 2017 with an average of 20,000 individuals per Union Council.
The IHC bench was also informed that the Election Commission had completed the process regarding delimitation of 101 Union Councils as determined by the Federal Government and the formal notification was subsequently published in the official gazette under sub section (1) of section 6 of the Islamabad Capital Territory Local Government Act of 2015 was issued on 13.06.2022. The IHC Chief Justice noted that the election schedule announced by the ECP was on the basis of notification dated 19.10.2015 and the said notification was admittedly withdrawn on 18.05.2021. He also noted that a plain reading of the Act of 2015 as a whole, prima-facie, shows that the statutory duty of the Election Commission to hold elections is subject to a notification issued by the Federal Government under sub section (1) of section 6 of the Act of 2015 and the notification whereby 50 Union Councils were determined by the Federal Govt was withdrawn and did not exist with effect from 18.05.2021.
Justice Athar said that the court had also been informed that the delimitation process pursuant to the decision of the Federal Government on the basis of redetermination of Union Councils had also been completed.
“It, prima-facie, appears that schedule for holding elections is subject to existence of a valid notification issued under sub section (1) of section 6 of the Act of 2015. The notification is a pre-condition for setting wheels in motion,” said Justice Athar.
He added, “It also appears that the Election Commission is not empowered to issue the election schedule in absence of a notification issued under section 6(1) of the Act of 2015.” He further said that the election schedule notified on the basis of a withdrawn notification, prima-facie, appears to be ultra vires the Act of 2015. “As already noted, the earlier notification was withdrawn on 18.05.2021 followed by a decision and issuance of notification under section 6(1) of the Act of 2015 by the Federal Government whereby it has determined the number of Union Councils to be 101. The intent of the legislature appears to be unambiguous and, prima-facie, elections ought to be held pursuant to the notification issued by the Federal Government under sub section (1) of section 6 ibid,” maintained the IHC CJ.
He continued that the court, therefore, expects that the Commission will consider the intent of the legislature as discussed above and take appropriate decisions in order to give effect thereto.
Later, the IHC bench deferred the hearing of the case till June 22 (today).
