No Senate polls in KP till MPAs on reserved seats take oath: ECP

ISLAMABAD: The Election Commission of Pakistan (ECP) Thursday passed a rare order, postponing the Senate election to the extent of Khyber-Pakhtunkhwa (KP) should the provincial assembly speaker not administer oath to the MPAs-elect on reserved seats.

The full five-member bench announced its verdict, which it had reserved on March 26, after having heard arguments from the petitioners and defendants. The bench also said the time for the Senate polls about KP would be extended till the oath-taking of MPAs-elect to ensure their participation in the electoral process.

Five MPA-elect on women reserved seats, including Jamila Paracha, Afshan Hussain and Amna Sardar, Faiza Malik and Shazia Jadoon and a non-Muslim Suresh Kumar, had moved the ECP, saying they were being denied an opportunity to take the oath as MPAs of Khyber Pakhtunkhwa.

In the seven-page order, authored by Chief Election Commissioner Sikandar Sultan Raja, the bench referred to various articles of the Constitution, the Elections Act 2017 and apex court orders.

“ln view of the discussion and the order of the Honourable Peshawar High Court, the Commission, in exercise of its powers under Article 218(3) of the Constitution, read with Section 4(1), Section 8(c) of the Act and all other enabling powers in this behalf, directs that in case of failure of the Speaker, Provincial Assembly, Khyber Pakhtunkhwa to comply with the directions of the Peshawar High Court referred hereinabove, the Commission shall be constrained to postpone the ensuing Senate election and extend the time for completion of the Senate election to the extent of Khyber Pakhtunkhwa Provincial Assembly in terms of Section 128 of the Act and amend the Notification issued under Section 207 of the Act till the administration of oath to the applicants...” reads the order.

Upon receipt of the applications mentioned in the subject, notices were issued to the applicants and the KP provincial assembly secretary. Counsel for the applicants appeared and argued the matter. The order says that the ECP legal team comprising DG law, ADG law, DD law and legal consultant assisted the commission. They argued that under Article 218(3), the commission was charged with the duty to organise and conduct elections and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and under the law and that corrupt practices are guarded against. They explained that the national and provincial assemblies are the electoral colleges for election to the Senate and elected member(s) of an assembly are voter(s) of the said electoral college(s) and are entitled to vote.

The legal team argued that the right to vote is a fundamental right guaranteed under Article 17(2) of the Constitution, as held by the Supreme Court in the case of Chaudhry Nasir Iqbal and others Vs. Federation of Pakistan, reported in PLD 2014 SC 72. They further argued that the connotation of ‘make such arrangements’ used in Article 218(3) of the Constitution includes the facilitation of the voters to cast their votes. They maintained that to fulfil its constitutional duty under Article 218(3), the commission is vested with powers under Article ibid read with Sections 4 and 8 of the Elections Act 2017… to pass such orders and issue appropriate directions to the authorities concerned to facilitate administration of oath to the applicants to fulfil the constitutional command. They placed reliance on PLD 2012 SC 681 ‘Workers Party through Akhtar Husain Vs Federation of Pakistan and others’.

“Learned Counsel for the applicants submitted that the Commission has issued the notifications of the returned candidates on the reserved seats on 04-03-2024. He read out the notifications and contended that the names of the applicants, affiliated with PML(N) were notified… He also referred that the Commission vide another notification notified the name of Suresh Kumar as returned candidate on the seat reserved for Non-Muslims on the same date. He argued that Speaker, Provincial Assembly, Khyber Pakhtunkhwa was bound to administer oath to the notified returned candidates. That the notification issued by the Commission has not been implemented by the Speaker. He submitted that Senate election is scheduled on 02-04-2024 and therefore he requested the Commission to postpone the same in the interest of justice till the administration of oath of the applicants,” the order says.

He, while concluding his arguments, requested the commission to issue appropriate directions to the KP speaker to administer oaths to the applicants. The KP provincial assembly speaker appeared before the ECP bench and submitted that the meeting of the assembly would be convened following the Rules of the Business of the Assembly and that the speaker had not refused to administer the oath to the applicants. The order also reproduced the operative part of the short order of the Peshawar High Court with the petition, filed by the MPAs-elect, seeking the court’s intervention to ensure their oath-taking.

The KP assembly speaker was directed by the court to administer an oath to the MPAs-elect and also facilitate them to cast their vote in the Senate elections fixed for April 2.