The Sindh High Court (SHC) on Thursday dismissed the Muttahida Qaumi Movement-Pakistan’s (MQM-P) application seeking a stay on the holding of the local government elections scheduled for January 15. The MQM-P had assailed the Election Commission of Pakistan’s (ECP) notifications about holding the LG polls in the province.
According to the petition of MQM-P MPA Kanwar Naveed Jamil and former district chairmen, the ECP’s notifications about local bodies’ polls in the province were issued in violation of the LG and ECP laws.
Their counsel M Tariq Mansoor said that the full composition of the ECP — the chief election commissioner and four members from each province — was a mandatory constitutional requirement to be met under Article 218 of the constitution.
He said the ECP had issued the impugned notifications in violation of the law because the commission’s composition was incomplete, since two of its two seats were lying vacant. He added that the provincial government had still not complied with the Supreme Court’s direction to amend the LG law in conformity with Article 140-A of the constitution.
He said the provincial government is the competent authority to announce the date of elections in consultation with the ECP, while the commission is not authorised to act on its own, and doing so is tantamount to acting in excess of jurisdiction as well as arbitrary exercise and abuse of powers.
He requested the SHC to declare the ECP’s impugned notifications to hold LG polls in two phases as unlawful because they were issued without ensuring the mandatory constitutional commandment of the commission’s complete constitution. He also requested a stay on the holding of the polls.
After hearing the arguments of the counsel, an SHC division bench comprising Justice Mohammad Iqbal Kalhoro and Justice Adnanul Karim Memon said the ECP is the constitutional body responsible for conducting elections in the country.
The bench said the petitioners’ counsel had sought a stay on the premise that the ECP was not properly constituted at the time of issuing notifications for holding the LG polls. However, the court pointed out, Section 3(2) of the Election Act provides that the ECP may exercise its powers and perform its functions even if the office of any member of the commission is vacant.
The ECP can also exercise its powers if any of the members is for any reason unable to attend the proceedings of the commission, and the decision of the majority of the members will have the effect of the decision of the entire body, added the bench.
The SHC said that prima facie, the petitioners’ counsel has not been able to point out any inherent illegality, flaw or defect in the ECP’s impugned notifications that may require interference at the interlocutory stage. Therefore, said the bench, no restraining order is required to be issued on the application of the petitioners. The court then dismissed the petition as misconceived.
