ISLAMABAD: The Election Commission of Pakistan (ECP) appears to be in a legal quandary as the government continues to sit on the official notification of the census held in 2017.

The ECP has a constitutional obligation to hold local government (LG) elections but the exercise will be deemed illegal until the final census notification is issued.

The term of local governments in Balochistan and Khyber Pakhtunkhwa expired on Jan 27, 2019 and Aug 28, 2019, respectively, while Punjab dissolved its local bodies on May 4, 2019. Similarly, the local government’s tenure in Sindh ended on Aug 30 this year.

“The commission shall hold elections to the local governments within 120 days of the expiry of the term of the local governments of a province, cantonment, Islamabad Capital Territory or Federally Administered Tribal Areas,” section 219(4) of the Elections Act, 2017 reads.

This means that the legal deadline for holding LG polls in the three provinces, except Sindh, has already passed.

Commission awaiting 2017 census notification to initiate process

Perturbed by the situation, Chief Election Commissioner Sikandar Sultan Raja has sought Prime Minister Imran Khan’s intervention in the matter.

In a letter addressed to the prime minister, a copy of which is available with Dawn, the chief election commissioner has invited his attention to Article 51(5) of the Constitution amended through 24th Constitutional Amendment to pave way for allocation of National Assembly seats to the federating units and carrying out delimitation of constituencies on the basis of provisional census results.

He pointed out that the one-time waiver was meant only for general elections and the subsequent by-polls and was not applicable to the local government elections.

“In this backdrop, it is stated that delimitation of constituencies is one of the fundamental steps towards elections. According to the Constitution and law, delimitation of constituencies is conducted on the basis of population in accordance with the last census officially published,” he said.

Mr Raja further said it was imperative that the final results of the sixth population census 2017 be officially published at the earliest so that the ECP could carry out delimitation to meet its constitutional obligation of organising and conducting elections to the local governments as enshrined in Article 218(3) read with Article 219(d) and Article 140-A(2).

“The exercise of delimitation will not be possible until the official publication of final results of the sixth population census is made available. I am constrained to seek your kind intervention in the matter with the request that steps may kindly be taken for official publication of final results of sixth national census 2017 at the earliest so that the ECP can proceed with delimitation of constituencies accordingly,” the letter reads.

Senior ECP officials have also taken up the census publication issue at the bureaucratic level.

In a letter to the parliamentary affairs secretary, ECP Special Secretary Zafar Iqbal Hussain has asked him to raise the matter at the appropriate level.

In another letter to the law secretary, Mr Hussain has asked “whether the provision of Article 51(5) whereby provisional results of sixth national population census has been made applicable to the National Assembly and provincial assembly constituencies will also be applicable to local governments or otherwise”.

He urged the law secretary to provide necessary guidance in the matter.

ECP Secretary Dr Akhtar Nazir has also written letters to the Senate and the National Assembly secretaries, asking them to raise the issue with the Senate chairman and National Assembly speaker, respectively, and urge them to ask the government to immediately publish the official notification of the census results.

As an alternative, the secretary has floated the idea of a constitutional amendment to extend the provisional census results to the local bodies elections.

Since a final notification of census results is still on hold, the delimitation of constituencies — a pre-requisite to conduct elections — if carried out would be illegal, legal experts believe.

The Muttahida Qaumi Movement and Pakistan Peoples Party had rejected the provisional census results and had agreed to vote in favour of the 24th Constitutional Amendment on the condition of third person audit of one per cent census blocks proportionately in all the provinces selected by random computer ballot. The audit has never been carried out.

One of the political parties to have rejected the provisional census results is now part of the ruling coalition and to many, the reason for delay in official notification was the government’s fear to lose an ally.

A senior ECP official, when contacted, said holding of LG elections was a constitutional responsibility of the commission under Article 219 of the Constitution.

He said under sub-section d and e of Article 219 of the Constitution, the ECP was charged with the duty of holding general elections to the National Assembly, provincial assemblies and the local governments, and such other functions as may be specified by an act of parliament.

The ECP official said according to Article 140A of the Constitution each province is required by law to establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives.

He said Article 140A(2) of the Constitution reads, “elections to the local governments shall be held by the Election Commission of Pakistan” while Section 17(1) of the Elections Act, 2017, states that the ECP was responsible to delimit territorial constituencies for elections to the National Assembly, each provincial assembly and to local governments in accordance with the provisions of the Constitution, the Act, the Rules and the applicable local government law.

Published in Dawn, October 4th, 2020