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Petitioner: PAKISTAN PEOPLES PARTY VS Respondent: GOVERNMENT OF PUNJABand others
Court Name: Lahore High Court Judge(s): Muhammad Farrukh Irfan Khan, Umar Ata Bandial Title: PAKISTAN PEOPLES PARTY vs GOVERNMENT OF PUNJABand others Case No.:Writ Petitions Nos.23040, 25848, 26380, 27900, 24243, 20787, 23527 and
25028 of 2013 Date of Judgment:2014-02-18 Reported As: PLD 2014 Lahore 330 Result: Order accordingly Judgment ORDER ' UMAR ATA BANDIAL, C.J.---This order shall also decide Writ Petitions Nos. 22040, 25848, 26380, 27900, 24243, 20787, 23527 and 25028 of 2013 involving common questions of law. 2. The aforementioned writ petitions have been heard by us on the vires of two provisions of the Punjab Local Government Act, 2013 ("PLGA").The first challenge is to the delimitation of Local Government constituencies to be done by the Provincial Government under sections 7 to 10 of the PLGA. The second challenge is made to the provisions of section 18 of the PLGA requiring election of members of local governments to be held on non-party basis. 3. With respect to power of delimitation of constituencies conferred on the Provincial Government, it is the case of the petitioners that Article 140A(2) of the Constitution of Pakistan ("Constitution") envisages election to the Local Governments to be held by the Election Commission of Pakistan ("ECP"). ECP has the authority under Article 219 of the Constitution to hold General Elections to the National Assembly, Provincial Assemblies and the Local Governments. Article 222(b) of the Constitution visualizes delimitation of constituencies for elections to be carried out by the ECP. Therefore the delimitation of Local Government constituencies is claimed as a necessary arrangement to be made by the ECP to ensure honest, just, fair and lawful elections within the terms of Article 218(3) of the Constitution. 4. Learned counsel for the respondent Provincial Government have contended that the constitutional mandate under Article 140A(2) and Article 219(d) of the Constitution is for the ECP to "hold" election to the Local Governments. The stage of delimitation of constituencies is anterior to the process of holding of elections. There is no law by Parliament made pursuant to Article 222(b)
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of the Constitution that provides the framework for delimitation of Local Government constituencies by the ECP. The only law on the subject in the Province is the PLGA. This provides for the establishment and powers of Local Governments and is made in exercise of legislative competence under Article 142(c) and Article 140A(1) of the Constitution. With reference to history of statutory law in the matter of delimitation of Local Government constituencies, it is explained that such delimitation has always been a subject for action by Provincial Governments. 5. The second point of challenge is to section 18 of the PLGA that provides for non-party based elections for all Local Governments. The Province of Punjab is claimed to have a duty under Article 140A(1) of the Constitution to establish a Local Government system that devolves political, administrative and financial responsibility and authority to the elected representatives of Local Governments. Devolution of political responsibility and authority is claimed to involve the making of political decisions by both the electors and elected representatives of Local Governments. Under Article 7 of the Constitution, Local Governments as the third tier of the State are equally placed along with the Federal Government and the Provincial Governments. The establishment of Local Governments must therefore follow the same course that applies to the establishment of the Federal Government and the Provincial Governments through party based elections. 6. Article 17(2) of the. Constitution has been interpreted by the Hon'ble Supreme Court of Pakistan to include the right of political parties to contest elections and for the party enjoying majority in the House to form government. The said fundamental right under Article 17(2) read with Article 140A(1) of the Constitution creates an overriding constitutional obligation for the Provinces to hold party based elections for Local Governments. Section 1.8 of the PLGA is violative of such constitutional obligation. 7. The. Province of Punjab has opposed the said plea for party based elections for Local Governments on the ground that Article 17(2) of the Constitution is not applicable for the establishment of Local Governments. As statutory public authorities, Local Governments perform executive functions in connection with the affairs of the Province but discharge no legislative function. The elected Local Government representatives therefore fall within the definition of service of Pakistan under Article 260 of the Constitution. Article 17(2) of the Constitution confers, inter alia, political rights on citizens but denies these to persons in the service of Pakistan. Also the fundamental right under Article 17(2) allows citizen to form and or be a member of a political party but does not extend to the right to contest for or be elected to a public office which are matters dealt by statute. The PLGA has been competently legislated to confine the contest in direct elections to Local Government offices through non-party elections. The law laid down by the Hon'ble Supreme Court on General Elections is concerned with the Parliament and Provincial Assemblies and is therefore confined to elected Houses that exercise legislative functions. The Local Governments are statutory bodies exercising executive but not legislative functions. As the elected representatives of Local Governments are in the service of Pakistan therefore they are also under the rule of public service to remain neutral and non-political in the discharge of their functions. Since 1962 when Local Government was first introduced in Pakistan all elections to offices in such governments have been held on non-party basis without any challenge being made on the present grounds. 8. We have carefully deliberated and considered the submissions made by the learned counsel for both the sides. 9. Delimitation of Local Government Constituencies 9.1 Article 140A(2) and Article 219(d) of the Constitution contemplate the election to the Local Governments "to be held" by ECP. The delimitation of onstituencies and preparation of electoral rolls are inceptional steps meant to enable elections. Consistent authority treats such steps to be anterior to the holding/conduct of elections. The starting point of the election process is
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understood to be notification of the election schedule or program that follows after the said inceptional steps have been taken. Reference in this behalf is made to Muhammad Nazir Hakim v. Bukhtiar Said Muhammad and the Controlling Authority Montgomery (PLD 1962 Lahore 421), Amirzada Khan MNA v. The Chief Election Commissioner and 2 others (PLD 1974 Lahore 178), Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), Khursheed Ahmed Junejo and others v. Government of Sindh and others (2005 MLD 1724(SHC), Surendrasinhaji Jorawarasinhji Jhala v. U.M. Bhatta, Chie Electoral O,t cer, Ahmedabad and others (AIR 1969 Gujarat 292) and Haji Muhammad Afzal and others v. Mian Miraj Din and others (PLD 1967 Lahore 689). 9.2 Article 222 of the Constitution.Provides for Parliament to make law on different subjects relating to elections. One such subject is the delimitation of constituencies by the ECP under Article 222(b) of the Constitution. No law has been framed by Parliament on the subject of delimitation of constituencies of Local Governments. The only law on this subject is the PLGA. 9.3 Item No,41 of the Federal, Legislative List in. The Constitution does not empower Parliament to .Frame laws in relation to Local Government elections. Such power is therefore vested in the Provincial Assembly pursuant to Article 142(c) of the Constitution. The PLGA is promulgated in exercise of said legislative power competently as valid law. 9.4 In exercise of power conferred by the PLGA the Provincial Government has framed Punjab Local Governments (Delimitation) Rules, 2013. In addition Guidelines for Delimitation Authorities have been issued by the Provincial Government on 29-8-2013 which address the different aspects of the delimitation process. 9.5. In the light of the constitutional provisions, statutory provision of PLGA and subordinate legislation made thereunder, we conclude that the Provincial Assembly of Punjab has lawful authority to legislate on the subject of delimitation of Local Government constituencies. The duty of the ECP .To "hold" elections to local governments does not include the process of delimitation of constituencies and therefore no constitutional mandate is violated by such process being carried out in accordance with law by the Provincial Government. 1.0. Non-party Based Local Government. Elections 10.1Article 140A of the Constitution was inserted by the Constitution (Eighteenth Amendment) Act, 2010. The significant feature of Article 140A of the Constitution is its command to devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments. The devolution of political responsibility and authority to the elected representatives necessarily involves the application of their political principles and values. The expression of such principles and values by citizens of the country has been guaranteed under Article 17(2) of the Constitution. The citizen's right to form or be a member of a political party extends to the party's right to contest and participate in elections: Mrs. Benazir Bhutto and another v. Federation of Pakistan etc. (PLD 1989 SC 66). Equally where a political party contests the election successfully, it has a fundamental right to form government provided it enjoys the requisite majority: (Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). As the third tier of government in the State, the Local Governments perform valuable public functions and exercise power to impose taxes; these institutions are accountable to the citizens of .The Province who are their electors under adult franchise. The fundamental right of political parties to contest election extends equally to all tiers of government, including Local Governments. 10.2. Local Governments derive their status from Articles 7, 32, and 140A of the Constitution. While these constitutional provisions permit provincial legislation on the subject of the Local Government system yet checks have been imposed on the power of the Provincial Legislature to guide such legislation. The Constitution commands to devolve political responsibility and authority to the elected representatives of Local Governments. Political responsibility and authority is exercised by elected representatives of the Local Governments by applying their political values and principles.
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These define the political identity of the elected representatives. The denial of political identity of a candidate for a Local Government office by section 18 PLGA negates the obligation of the Province under Article 140A of the Constitution to devolve political authority and responsibility to elected representatives of Local Governments. Consequently, the non-party based, non-political election to Local Governments depriving candidates of their political identity is also inconsistent with the mandate of Article 140A (1) of the Constitution and must yield to that constitutional command: (Wattan Party through its President v. FOP and others (PLD 2006 SC 697) and Baz Muhammad Kakar and others v. FOP and others (PLD 2012 SC 870). 10.3 The fact that elected representatives of the Local Governments are not excluded from the definition of service of Pakistan under Article 260 of the Constitution does not mean that the candidates of political parties are barred from contesting elections for Local Government posts. At best, an elected representative of Local Government and not a candidate for such office is deprived of the right under Article 17(2) of the Constitution. There is no constitutional bar on a candidate of a political party from claiming a right under Article 17(2) of the Constitution to contest a Local Government election. It is an elected candidate who is under a duty to discharge his office and perform his functions in accordance with the PLGA, Rules and notifications framed thereunder. However, that aspect of the matter is not relevant to the present controversy. 10.4 For elected representatives of Local Government to exercise political authority and to assume political responsibility as directed by Article 140A(1) of the Constitution, it is necessary for them to nurture political values and principles that guide their executive decision making. In making a choice of beneficiaries of their executive action and for fixing priorities in the enforcement of executive policy, elected representatives of the Local Governments exercise judgments that draw I on their political vision, values and principles. Without involving violation of any law or showing a leaning towards any party or its program, such evaluation draws upon the political mooring and roots of the elected representatives. The political party background of elected representatives provides and nourishes such roots. The above view assumes that all elected representatives of Local Governments exercise executive functions whereas infact executive authority of a Local Government institution is vested in and exercised by its Chairman or. Mayor, as the case may be. (S.64(2) PLGA). As such the remaining elected representatives of Local Governments would fall outside Article 260 of the Constitution and may claim rights under Article 17(2) of the Constitution. 10.5 Significantly certain offices of Local Governments under the PLGA are not elected by adult franchise. The elected representatives of Union Councils, Metropolitan Corporation, Municipal Committee and Municipal Corporation constitute an electoral college for the post of Chairman and Vice-Chairman, Mayor and Deputy Mayor, as the case may be, of such Local Governments. The participation of elected representatives in the said indirect election involves the exercise of a political choice. Such choice can be exercised fairly, prudently, and transparently if the electors are imbued with a defined political vision, principles and values. The elected representatives having backing of political party would make their choice without being swayed by influence and other considerations. 11. In view of the foregoing observations, we hold that section 18 of the PLGA is inconsistent with the fundamental right under Article 17(2) of the Constitution of citizens and political parties to contest elections to the public posts in the Local Governments. Also non-party elections to offices in the Local Governments is inconsistent with the, command in Article 140A(1) of the Constitution. 12. As a result, section 18 of the PLGA is declared to be void under Article 8 of the Constitution. 13.Detailed judgment to be provided later. Announced in Open Court on 7-11-2013. DETAILED REASONS ' Our judgment announced on 7-11-2013, which is reproduced above, contains the essential facts and summary of reasons for the two findings given by us in the context of local government
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election in the Province of Punjab that was to be held on 7-12-2013 under a schedule announced by the Election Commission of Pakistan ("ECP") on 6-11-2013. We rely upon the facts given therein and support our said findings with these detailed reasons. 2. Our first finding holds the Provincial Government to be competent under sections 7 to 10 of the PLGA to settle delimitation of local government constituencies. Our second finding declares section 18 of the PLGA to violate constitutional limitations by prohibiting candidates of political parties from contesting the scheduled local government election in the Province of Punjab. 3. The last local government elections in the Province were held on 25-8-2005. On expiry of the four year term of office of the elected local governments in the year 2009, the Provincial Government extended their 'tenure until 24-2-2010. Notwithstanding the lapse of nearly four years thereafter no local governments have been constituted in the Province because no election has since been held. Instead civil servants are till date discharging the functions Of local government offices in the Province. 4. Meanwhile Constitutional Petition No,77 of 2010 titled President Balochistan Bar Association v. Federation of Pakistan was being heard by the Hon'ble Supreme Court of Pakistan. This petition complains of injustice to citizen caused by weak governance in the Province of Balochistan. The Hon'ble Supreme Court observed an operative cause for the said condition to be the lack of local governments in the Province of Balochistan. Local governments were also found absent in the other Provinces and the Cantonment Boards. Accordingly, directions were issued by the Hon'ble Supreme Court to the Federal Government and all Provincial Governments. In the said proceedings the Government of Punjab made a commitment before the Hon'ble Supreme Court noted in its orders dated 25-10-2013 and 5-.11-2013 that the local government election in the Province shall be held on or before 14-12-2013. 5. Based on the directives given by the Hon'ble Supreme Court in its afore-noted orders, on 6-11- 2013 the ECP issued the schedule for local government elections in the Province of Punjab according to which the poll was to be held on 7-12-2013. These local government elections were going to be held in the Province for the first time since 2005 after a lapse of eight long years. Accordingly, the constitutional right of the people under Article 7, 32, 37(i) and 140A of the Constitution, to have local government in the Province, was enforced by order of the Hon'ble Supreme Court of Pakistan pursuant to a commitment made by the Provincial Government. As a result the ECP issued its said election schedule dated 6-11-2013. We kept the foregoing factual background in view whilst hearing the present petition and refrained from interfering with the election process unless strong legal grounds were shown. This means grounds based on express or settled law to sustain the challenges made by the petitioners to the vires of the PLGA. Delimitation of Local Government Constituencies 6.Ever since the introduction of local government institutions in Pakistan through the Basic Democracies Order, 1959 ("BDO, 1959") the delimitation of local governments constituencies has under successive laws always been done by the Provincial Government. These laws include the Punjab Local Government Act 1975, Punjab Local Government Ordinance, 1979 and closer to the facts of the present case the Punjab Local Government Ordinance, 2001 ("PLGO, 2001"). Section 6 of the PLGO, 2001 (now repealed) conferred delimitation authority upon the Provincial Government but by its section 150, the said statute entrusted the ECP with the duty to conduct local government elections in the Province of Punjab. Two local government elections were held in the Province under the said law in the years 2001 and 2005. The exclusion of the delimitation of constituencies from the charge of the ECP survived without change or interference through these elections. Plausibly the said arrangement was consistent with the charter and obligations of the ECP given in Part-VIII of the Constitution.
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7.Article 140A was inserted in the Constitution through the Constitution (Eighteenth Amendment) Act, 2010 ("Eighteenth Amendment"). A salient feature of the Eighteenth Amendment is that it omitted the Concurrent Legislative List in the Fourth Schedule to the Constitution, thereby expanding the scope of legislative and executive authority of the Provinces. Under Article 142(a) read with Item No,2 of the Federal Legislative List in the Fourth Schedule to the Constitution, the Federation has legislative and executive competence in the matter of "local self-government in cantonment areas". With respect to local government in the Provinces and its constitutive elections, the legislative and executive competence rests solely with the Provinces. In the light thereof, Article 140A of the Constitution converts the State's obligation to elect local governments in the Provinces that was hitherto expressed in statute into a constitutional mandate. Article 140A of the Constitution reads as follows:-- "140A. Local Government (1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial 'responsibility and authority to the elected representatives of the local governments. (2) Elections to the local governments shall be held by the Election Commission of Pakistan." 8. Article 140A(1) is new in specifying the type of governmental responsibility and authority that must devolve to elected representatives of local government. This aspect is dealt with later in these detailed reasons. Article 140(2) of the Constitution gives constitutional status to the role of the ECP to "hold local government election" in the Provinces. Previously the ECP's role was a statutory requirement in the PLGO 2001. To reinforce the command about the. ECP given in Article 140A(2) of the Constitution, the Eighteenth Amendment has also enlarged the scope of Article 219(d) of the Constitution as follows:-- "219. Duties of (Commission).---The (Commission) shall be charged with the duty of---- (a) (b) (c) (d) the holding of general elections to the National Assembly, Provincial Assemblies and the local governments; and 9. Clearly Article 140A(2) and Article 219(d) of the Constitution obligate the ECP to hold local government election in the Provinces. However neither provision specifies the extent and scope of ECP involvement in the process of holding such election. Article 222 of the Constitution is instructive for identifying the different stages in the election process, including the extent and scope of ECP authority therein, about which statutory law is to supply detail. However, Article 222 has not been amended to apply to local government elections. Nevertheless the said Article is relevant for appreciating the different facets of the election process that may be settled by statutory law. It reads as under:-- "222. Electoral laws.---Subject to the Constitution, (Majlis-eShoora (Parliament)) may by law provide for - (a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51; (b) the delimitation of constituencies by the Election Commission; (c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls; (d) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with elections; (e) matters relating to corrupt practices and other offences in connection with elections; and (f) all other matters necessary for the due constitution of the two Houses and the Provincial Assemblies;
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but no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or an Election Commission under this Part." 10. The Constitution does not lay down fixed criteria about the different election stages that are specified in clauses (a) to (e) of Article 222. It leaves these matters open for regulation by Federal law without prejudice to constitutionally assured powers and authority of the ECP or the Chief Election Commissioner ("CEC"). It may be noted that notwithstanding detailed Federal legislation regarding election to Parliament and Provincial Assemblies, Article 222(0 of the Constitution has not been amended to include local government elections within its ambit. Thus the Constitution does not in the case of local government election obligate the Provinces to adopt the legal framework of Federal laws established under Article 222 of the Constitution. Article 222 is consistent with the Y scheme of Provincial autonomy under the Constitution by keeping local government as an exclusively provincial subject. Therefore, local government election is also a matter to be dealt with and decided solely by the Provinces. The role of the ECP in holding such election may have invited Federal legislation because Item No,41 of the Federal Legislative List, Fourth Schedule to the Constitution contains the subject of "Chief Election Commissioner and Election Commission". Notwithstanding its competence to elaborate upon the reservation contained in Article 222 regarding ECP powers, Parliament has not made any law to lend guidance to the Provinces on the role of ECP in local government elections. This means that the scope of ECP powers and…
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