Holding local government elections in stipulated time in Khyber Pakhtunkhwa seems to be an uphill task for the Election Commission of Pakistan (ECP) and provincial government due to different reasons.

However, in a recent judgment the Peshawar High Court pronounced that holding of the local bodies elections was not only a legal process, but essential for carrying forward the mandate of Article 140-A of the Constitution of Pakistan.

This observation was made by a two-member bench comprising Justice Mussarat Hilali and Justice Wiqar Ahmad in a detailed judgment released recently while dismissing a petition filed for holding local government elections in the province beyond the stipulated 120 days’ time given in the Elections Act, 2017.

The petition was filed by MPA Mahmood Ahmad Khan Bitani of Jamiat Ulema-i-Islam-Fazl who claimed that after the passage of Local Government (Amendment) Act, 2019, different administrative actions had to be completed in six months period and thus the provision of holding polls in 120 days was not applicable to these elections.

The bench heard the case on Sept 5 and had ruled that the present petition was not maintainable.

The detailed judgment authored by Justice Wiqar Ahmad ruled: “The petitioner could not satisfy this court as to what is his problem in holding of local bodies elections in time. If an extra effort is required that would either be required from the officers of the Election Commission or those of the provincial government, which is none of the business of the petitioner.”

“We could not understand the concern of the petitioner and his worries about the extra efforts that is likely to be made by the officers of the Election Commission and the provincial government, in adhering to the timeline provided in the two laws,” the bench ruled, adding that the petitioner is thus not found to be aggrieved person and he has got no locus standi to bring the instant petition before this court.

The local government polls in Khyber Pakhtunkhwa were held in 2015 and the tenure of the elected persons expired on Aug 28, 2019. Under section 219 of the Election Act, 2017, fresh polls have to be held within 120 days of the expiry of the term of existing local bodies.

The petitioner had requested the court to declare that the initiation of electoral process for local governments before the expiry of the mandatory six-month time, as provided in the said amendment Act, is based on mala fide and illegal and in essence pre-poll rigging.

One of the reasons cited by the petitioner for delaying the polls was that the erstwhile Fata (Federally Administered Tribal Areas), which had now been merged with KP, did not have any system of local government. He had stated that the KP Local Government Act (KPLGA), 2013, was amended on numerous occasions and recently it was amended through the KPLG (Amendment) Act, 2019.

He claimed that pursuant to the amendment Act, 2019, no delimitation had taken place. He added that through the Amendment Act a new section 120-A was introduced in KPLGA, which provided for doing all the needful administrative actions and giving effect to all the provisions thereof within six months from the date of commencement of the Amendment Act.

The bench ruled that it did not see conflict between section 120(A) of the KPLGA and Section 219 (4) of the Election Act.

“Sub-section 3 of section 120 (A) of the Local Government Act, 2013, prescribes a maximum period of six months for completion of all administrative actions required for giving effect to the provisions of Local Government Act and transition to the local government system,” the bench observed.

“The Local Government (Amendment) Act, 2019, has been enacted and assented to by the Governor of Khyber Pakhtunkhwa on April 29, 2019,” the bench observed, adding that the six months period given in KPLGA if counted from April 29 would expire on Nov 29, whereas the 120 days time given in Elections Act shall expire on Dec 28.

“The argument regarding conflict between the two laws is therefore having no force as both the Acts go in synergy and with one spirit i.e. ensuring that there is no extraordinary delay in holding of local bodies elections after expiry of the term of office of the local government.”

One important observation made by the bench was: “This is no more a hidden fact that whenever the term of office of elected local bodies comes to an end, efforts are made to prolong the interregnum and to draw the period between the outgoing and incoming local bodies to the maximum possible length.”

Some other writ petitions are pending before the high court wherein the KP Local Government (Amendment) Act, 2019, has been challenged on multiple grounds. Initially, a petition was jointly filed by Senator Mushtaq Ahmad Khan and MPA Enyatullah Khan of Jamaat-i-Islami. Another petition was jointly filed by opposition leader in KP Assembly Akram Khan Durrani and parliamentary leaders of different opposition parties.

A few days ago, a petition was filed by president of Local Council Association Himayatullah Mayar who has twice served as district nazim of Mardan.

Some of the grievances of the petitioners are common, especially the abolition of the district tier of the local governments. Presently, due to multiple reasons the holding of polls before Dec 28 seems to be a difficult task. So far, the process for delimitation of local councils, which is mandatory under the law, has not started as the relevant rules have not been framed.

In the light of the present judgment of PHC and an earlier judgment of the Supreme Court reported as “Raja Rab Nawaz versus Federation of Pakistan 2013 SCMR 1629” it is mandatory for the ECP and provincial government to conduct the local government elections within the stipulated time.

Experts believe that the provincial government instead of dragging its feet on different local government-related issues should take immediate measures so that these polls could be held in time.

Published in Dawn, October 14th, 2019