PESHAWAR: A Peshawar High Court larger bench on Tuesday declared the provision of the Khyber Pakhtunkhwa Local Government Act for the holding elections of village and neighbourhood councils unconstitutional and directed the Election Commission of Pakistan (ECP) and provincial government to hold the forthcoming polls on party basis.

Justice Roohul Amin Khan, Justice Ijaz Anwar and Justice Syed Arshad Ali pronounced a two-page short order of striking down Section 27(2) of the KP Local Government Act (KPLGA), 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.

While partially allowing three petitions of the opposition leaders against the May 2019 drastic changes to the provincial local government law, the bench didn’t sayanythingin the short order about a major plea of the petitioners against abolition of the district tier of the government in the province.

Short order silent on plea against abolition of district tier of LG system

Judgment on the petitions was reserved a day ago after the completion of arguments.

The bench 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 Oct 25, those polls should be held on party basis.

“The provincial government as well as the Election Commission of Pakistan are directed to issue necessary direction to the returning officers to accept nomination papers from the candidates/aspirants for contesting election for village council and neighbourhood council on party basis w.e.f 4.11.2021 as per schedule notified through notification dated Oct 25, 2021, by the Election Commission,” it announced.

According to the ECP schedule, elections are held for village, neighbourhood and tehsil councils in 17 districts in the first phase in the province for which polling is scheduled for Dec 19.

The court also declared that elections of tehsil as well as village and neighbourhood councils should be held as per the schedule given in the notification, which should be implemented in letter and spirit.

One of the petitions was jointly filed by leader of the opposition in KP Assembly Akram Khan Durrani and parliamentary leaders Sardar Hussain Babak of the Awami National Party, Sardar Mohammad Yousaf of the Pakistan Muslim League-Nawaz, Sher Azam Wazir of the Pakistan Peoples Party and Lutfur Rehman of the Jamiat Ulema-i-Islam-Fazl.

The petitioners requested the court to declare that the KP Local Government (Amendment) Act, 2019, through which widespread changes were made to the KP Local Government Act, 2013, was in conflict with the Constitution, especially Articles 4, 8, 9, 17, 25, 32, 37 and 140-A.

Another petition was filed jointly by Jamaat-i-Islami provincial chief Senator Mushtaq Ahmad Khan and MPA Inayatullah Khan, who claimed that the purpose of the impugned amendments to the LG law was to devolve some powers of the district council and district nazim to the tehsil government and return the rest to the government.

They added that the amended Act was aimed at returning the control of many devolved departments to the provincial government and to abolish district tier of the local government system.

The third petition was filed by the president of Local Council Association (LCA), Himayatullah Mayar, who has twice served as district nazim of Mardan.

The petitioner requested the court to declare the abolition of district tier of the local government in the province against the law and Article 140-A of the Constitution, which guaranteed devolving political, administrative and financial responsibility and authority to elected representatives of the local governments.

Advocates Qazi Jawad Ahsanullah, Khushdil Khan, Ghulam Mohyuddin Malik and Zahid Sultan Khan Minhas had appeared for the petitioners and contended that an anomaly created through the impugned amendment act was the introduction of Section 21 whereby the office of the chairman of the tehsil council had been provided to be directly elected through party-based polls, whereas members of tehsil council would be elected on non-party basis.

They pointed out that the chairman of a village or neighbourhood council would also be a member of the tehsil council, but he or she would be elected under Section 27 (2) on non-party basis.

The lawyers said mutually contradicted procedure of electing chairman of the tehsil council through party-based polls and its members through non-party-based polls would encourage horse treading, blackmailing and corruption when it would come to situation of impeachment of the chairman by the council.

Advocate general Shumail Ahmad Butt had requested the bench to dismiss petitions, saying the government was ‘fully competent to introduce a local government system in accordance with peculiar situation in that province’. He added that it was not mandatory under the Constitution for all four provinces to have identical systems of local self-governance.

ECP director Khushal Zada and senior law officer Riaz Ahmad Khattak also appeared in the case.

Published in Dawn, November 3rd, 2021