ISLAMABAD: The Pakistan Tehreek-i-Insaf (PTI) government’s presidential ordinance of direct election of the capital’s mayor has been set aside as the Islamabad High Court (IHC) ruled that the local government (LG) polls would be held as per the law introduced by the previous regime.

IHC Justice Mohsin Akhtar Kayani accepted the identical petitions filed by Mazdoor Union of Capital Development Authority (CDA), CDA Officers Association and former union council chairman Sardar Mehtab against the promulgation of the Islamabad Capital Territory Local Government Ordinance.

Through a short order, Justice Kayani announced that the petitions had been allowed. Under the ordinance, the local government elections in the federal capital have been proposed to be held in May this year.

According to the petitioners, the ordinance was promulgated in violation of the spirit of Article 89 of the Constitution.

It may be mentioned here that the Supreme Court in a recent judgement ruled against the promulgation of excessive ordinances.

Rules LG polls to be held as per previous law; petitions claim ordinance a time-barred legislation

The apex court observed that “the president and provincial governors may promulgate ordinances, but their power to promulgate ordinances is circumscribed by the Constitution. The President may only promulgate an ordinance in respect of any matter in the Federal Legislative List, when neither the Senate nor the National Assembly is in session and can only do so when circumstances exist which render it necessary to take immediate action.”

During an earlier hearing of the case in February, Justice Kayani questioned how the LG Ordinance was promulgated while the Parliament was in session. The counsel for the federal government replied that the Parliament session was prorogated on Nov 19 while the ordinance was promulgated on Nov 23.

He said since the Election Commission of Pakistan (ECP) had set the deadline of Nov 25 for making a law on the local government, therefore, the law was promulgated through presidential ordinance.

According to him, the ECP had asked the interior ministry to formulate the law in 10 days.

According to the petitions, the ordinance is a time-barred legislation that had serious consequence for the provinces of Pakistan, whose resources were used to build the federal capital. Legislation of this nature and its implications both in terms of assets, finances and job prospects for the federating units, should have been debated in Parliament, they stated, adding that the fact it was not done violated the Constitution of Pakistan.

The petition filed by CDA Officers Association through Barrister Umer Gillani alleged that it was absurd to elect an entire tier of the federation upon the basis of a mere temporary law, adding that law of this nature, which could not possibly provide tenure protection to the elected local government fell short of the requirements of Article 140.

It contended that this law is patently in excess of the mandate of Article 89 of the Constitution, the scope of which is limited to emergency legislation. A petition filed by advocate Kashif Ali Malik on behalf of CDA’s Mazdoor Union criticising the LG ordinance, stated that this was promulgated without passing necessary formalities.

It stated the ordinance “introduced an altogether new structure of the local government in Islamabad and created multiple tiers within the local government. In doing so they have provided mechanism for direct election of the mayor of Islamabad, no deputy mayor, created ICT Council which would be an un-elected nominated body of members to be appointed/nominated by political parties, and neighbourhood councils which had no direct link even with the mayor of Islamabad.”

The petition contended that the said ordinance had repealed a law which was based upon an Act of Parliament and was passed after due course.

Published in Dawn, March 17th, 2022