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Petitioner: Dr. RAHEELA MAGSI VS Respondent: PROVINCE OF SINDH through Chief Secretary and 2 others
Court Name: Sindh High Court Judge(s): Faisal Arab, Nadeem Akhtar Title:Dr. RAHEELA MAGSI vs PROVINCE OF SINDH through Chief Secretary and 2
others Case No.:Constitutional Petition No,D-3463 of 2010 Constitution Petition No,77 of 2010 Human Rights Cases Nos.13124-P of 2011 Date of Judgment:2012-10-08 Reported As: 2013 CLC 1420 Result: Petition allowed Judgment ORDER ' NADEEM AKHTAR, J.--- Through this petition, the petitioner has impugned certain amendments purported to have been made in the Sindh Local Government Ordinance XXVII of 2001, hereinafter referred to as "the SLGO", whereby Local Governments in the Province of Sindh were dissolved; elected representatives of the people were removed, and in their place, non-elected and handpicked Administrators/bureaucrats were appointed; the Local Government elections which became due in the year 2009 were not held; and time for holding such elections was extended and finally was postponed indefinitely. 1. The petitioner is the President of the Local Council Association of Sindh and the former Zilla Nazim of District Tando Allahyar, and she intends to contest the forthcoming Local Government elections from the said District. It is the case of the petitioner that a debate under the National Reconstruction Bureau ('NRB') was organized in order to provide an efficient system of Government, and thereafter on 23-3-2000, a draft for establishment of Local Government was proposed by the Government of Pakistan in the light of the said debate. The aim for establishing Local Government was to "devolve power to the elected representatives at the grass root level" for achievement of good governance. Thereafter identical laws were promulgated for all the four Provinces and accordingly on 13-8-2001, the SLGO was promulgated by respondent No,2 (Governor of Sindh) to achieve "good governance through institutionalized participation of people at the grass root level". 2. According to the petitioner, the most significant aspect of the new Local Government system was a departure from bureaucratic system introduced by the British Raaj based on the theory of
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colonialism, and thus a domination by the strong over the weak and the rule by a minority without the consent of the governed. Such departure from the bureaucratic system towards the new Local Government system was made to empower the people through "institutionalized participation of people at the grass root level". For this purpose, each District/City District was sub-divided into Talukas/Towns which were further subdivided into Unions, where 13 members from each Union were to be elected firstly by the residents of that Union and then those elected representatives of the Unions would in turn vote for the Taluka/Town Head (Taluka Nazim) and the District/City District Head (District/City District Nazim). The main object of this new Local Government system was to ensure that the political, administrative and financial responsibility by devolution of power is entrusted to the elected representatives at the lowest level. 3. The petitioner has stated that the first Local Government elections were held in the year 2001 where after Local Governments for all the Districts and City Districts of Pakistan were brought into being. After expiration of four years, new elections were held in the year 2005 in accordance with section 150 of the SLGO. According to the petitioner, after expiration of the period of four years, next elections became due in the year 2009 under section 150 of the SLGO, and therefore the Chief Election Commissioner (respondent No,3) was bound to conduct elections in the year 2009. However, elections were not held and were delayed on one pretext or the other. It is the case of the petitioner that all of a sudden on 17-2-2010 the Sindh Assembly passed Sindh Local Government Amendment Act, 2010, amending the SLGO whereby Local Governments were dissolved, Administrators were appointed in place of elected representatives and elections were postponed for a period of 120 days. Thereafter, another Amendment Act was passed by the Sindh Assembly and a number of Ordinances were promulgated one after the other by the Governor of Sindh (respondent No,3) amending the SLGO. Through this petition, the petitioner has impugned all the aforementioned Amendment Acts and Ordinances in respect of the SLGO, which are detailed below:--- (i) The Sindh Local Government (Amendment) Act, 2010, dated 17-2-2010, whereby a new section 179-A was inserted after section 179 in the SLGO providing dissolution of Local Governments, appointment of Administrators in place of elected representatives, and postponement of elections for a period of 120 days; (ii) The Sindh Local Government (Second Amendment) Ordinance, 2010, dated 23-2-2010, whereby subsection (3) of the newly-inserted section 179-A in the SLGO was substituted by a new subsection (3); (iii) The Sindh Local Government (Third Amendment) Ordinance, 2010, dated 22-3-2010, whereby amendments were made in subsections (3) and (5) of the newly-inserted section 179-A of the SLGO and the time period for Local Government elections was further extended for a period of 165 days; (iv) The Sindh Local Government (Fourth Amendment) Ordinance, 2010, dated 3-5-2010, whereby further amendments were made in subsection (5) of the newly-inserted section 179-A of the SLGO including postponement of the elections for a further period of nine (9) months; (v) The Sindh Local Government (Fifth Amendment) Ordinance, 2010, dated 23-8-2010, whereby elections were postponed for an indefinite period on a date to be fixed by the Government according to its discretion; and (vi) The Sindh Local Government (Fifth Amendment) Act, 2010, dated 22-9-2010, whereby elections were postponed for an indefinite period on a date to be fixed by the Government according to its discretion on the ground that it is impossible for the Government to hold Local Government elections in accordance with the timeframe provided in section 179-A of SLGO in view of the unprecedented floods in the country including the Province of Sindh.
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4. Mr. Shabbir Shah, learned counsel for the petitioner, contended inter alia that representatives elected under the SLGO were unlawfully removed and were replaced by Administrators by the Government through the impugned amendment Act dated 17-2-2010 and the impugned Ordinance dated 23-2-2010. He further contended that the handpicked Administrators appointed by the Government are unlawfully utilizing Local Government funds that could be utilized only after authorization by the concerned Council. He also contended that the impugned actions of removal of elected representatives and appointment of Administrators by the Government has completely failed as the Administrators, who are bureaucrats/Government servants, have brought back the old bureaucratic system due to which not only the public is suffering, but the Local Government funds allocated for the welfare of the public are also being grossly misused. The learned counsel submitted that the very object of the impugned actions is to take over the control of administration and the Local Government funds from the elected representatives of the public and to hand over the same to the handpicked Administrators appointed by the Government. 5. The learned counsel for the petitioner invited our attention to section 2(xvi) of the SLGO where under the Local Government includes (a) a District Government or a City District Government and Zilla Council, (b) a Taluka Municipal Administration and Taluka Council, (c) a Taluka Municipal Administration and Town Council, and (d) a Union Administration and Union Council. He also pointed out to us that for the formation of a Local Government the presence of concerned Councils that is Zilla. Council, Taluka/Town Council and Union Council is mandatory under the said section 2(xvi), and that sections 35, 37 and 87 of the SLGO require the Councils to be composed of elected representatives. The learned counsel argued that in view of the above mandatory provisions of the SLGO, 'Elected Representative' is the very essence of the Local Government and there can be no Local Government if there is no local administration. Learned counsel further argued that by virtue of the impugned amendments institutional powers of all the officials, that is, Nazims, Naib Nazims and Councilors, have been given unlawfully only to one person, namely, the Administrator. He submitted that such unlawful and arbitrary delegation of powers has completely negated the very object of Article 140-A read with Article. 32 of the Constitution. He then submitted that there was no provision at all in the SLGO for appointment of Administrators even for a single day, on the contrary, under section 159 of the SLGO the Local Government, notwithstanding the expiry of its term, shall continue to hold office until the successor Local Government assumes office. The learned counsel emphasized that the said section 159 was specifically inserted in line with the preamble of the SLGO especially. To strengthen the object of the preamble, that is, "devolution of power to the elected representatives and institutionalized participation of the people at the grass root level" . He submitted that "appointment" of non-elected persons instead of "election" of representatives of the public is not only against the preamble of the SLGO, but is actually contrary to the scope and object of the SLGO. 6. In continuation to his above submissions, Mr. Shabbir Shah further submitted that section 107 of the SLGO was also inserted in line with its preamble whereby utilization of funds through any budget, scheme, project or even a grant is possible only with the approval of the concerned Council, and even an elected representative of the people cannot utilize such funds if the concerned Council does not approve the same with majority. He contended that this again proves that the primary object of the SLGO is "devolution of power to the elected representatives and institutionalized participation of the people at the grass root level" as given in the preamble of the SLGO. He pointed out that after dissolution of the Local Governments, handpicked Administrators. Appointed by the Government have been allocating schemes, projects, funds and grants on ad hoc basis arbitrarily in Complete violation of the above referred provisions of the SLGO and the Rules made thereunder.
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7. The learned counsel for the petitioner after inviting our attention to section 150(4) of the SLGO submitted that the deliberate delay by the Government in holding the Local Government elections after expiration of four years term ended in the year 2009 is contrary to the said section, .Which is reproduced below:--- "150. Authority for local government elections --- (1) (2) ........................................................................................................................ (3) ............................................................... (4) The elections to the local governments shall be held every four years' so as to enable their installation on the 14th day of August of the year in which elections are held." ' The learned counsel submitted that despite repeated promises to hold Local Government elections, the Government has failed to honour its commitment, and instead of holding the Local Government elections under the SLGO, the impugned amendments have been made therein by the Government one after the other with, very short intervals which clearly indicates that the Government has no intention to hold the said elections. He further submitted that the impugned actions of. The Government have violated the provisions of Articles 2, 2-A, 32 and 140-A of the Constitution, sections 150(4) and 159 of the SLGO, the Rules made under the SLGO, and have also violated the valuable voting/fundamental rights of the public guaranteed by the Constitution. 8. Learned counsel for the petitioner further contended that the impugned Ordinance dated 23-2- 2010 was re-promulgated again and again during very short. Intervals only in order to extend its life which actions are directly in conflict with the 18th Amendment of the Constitution, specifically Article 128 thereof, as extension in the life of an Ordinance can be made now only once and only by the concerned House which was the Sindh Assembly in this case. He submitted that all the impugned Acts and Ordinances are also in direct conflict with the parent law, that is, the SLGO. He further submitted that the public at large and the petitioner in particular are aggrieved with all the impugned Acts and Ordinances as their valuable and fundamental rights guaranteed by the Constitution have been blatantly violated by the Government by not holding Local Government elections since the year 2009. He prayed that all the impugned Acts and Ordinances, being ultra vires the Constitution, nullity and of no legal significance, be declared as such. 9. During the course of the hearing, learned counsel for the petitioner referred to the proceedings before the Hon'ble Supreme Court in Constitution Petition No,77 of 2010 and Human Rights Cases Nos.13124-P/2011, 40303-P/2011, 40220-G/2011 and 43103-B/2011, and placed on record copies of some of the Orders passed therein. Relevant portions of the said Orders are reproduced below :--- Order dated 5-4-2012 : "19. We have noted that in Balochistan the main problem is of socioeconomic nature, which can only be solved, if the general public of the province is empowered by holding the election of the local bodies, which otherwise is the obligation of the Government in term of Article 32 of the Constitution, which provides:--- "The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such Institutions special representation will be given to peasants, workers and women." ' The Chief Secretary informed that he has recently taken over the charge and had no full knowledge, except the process of delimitation, which is likely to be completed shortly and he will discuss this issue with the Chief Minister. He may do so but we are of the opinion that after passing of 18th Amendment in the Constitution, under Article 140-A, each provincial government is bound by law to establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. It is not only the Province of Balochistan but other provinces as well as Territory of Islamabad have not
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held election so far. We would like to have comments of all the Chief Secretaries, in this behalf Learned Attorney-General may seek instructions from all of them and submit statement under his own signatures." (Emphasis added) Order dated 6-4-2012: "In response to our order dated 5-4-2012, the learned Advocate-General, Balochistan, has placed on record a report on behalf of the Secretary Local Government with regard to non-holding of elections. No such report has been received from .Other provinces, perhaps, on account of non- attending the Court by the learned Attorney-General for Pakistan. Same process be repeated, to the learned Attorney General and meanwhile notice be also issued to all the Chief Secretaries that they should appear, in person, under instructions to make the statement as to why provisions, of the Constitution in terms of Articles 32 and 140-A are not being complied with, on the next date of hearing." (Emphasis added) Order dated 12-4-2012: "13. In response to the notices, the Chief Secretaries of all the Provinces, except Chief Secretary, Balochistan, who has already submitted his report before this Court at Quetta on the last date of hearing, undertake to file their respective reports. The case is adjourned enabling them to consult their respective Governments and present schedules for ho/ding local government elections under the command of the Constitution in terms of Articles 32 and 140-A (latter incorporated in pursuance of 18th Amendment of the Constitution)." (Emphasis added) Order dated 30-4-2012: "25. All the Advocate-Generals of the Provinces have appeared and stated that their respective Governments in principle have decided to enforce Article 32 read with Article 140A of the Constitution- for ho/ding the local bodies elections as early. As could be possible; however, they are facing some problems which they would like to explain at length before the Court on the next date of hearing.. They have also stated that as electoral list is not available; therefore, we direct the Secretary, Election Commission of Pakistan to appear and submit latest position about the electoral list. This issue will be taken up, when the matter will be fixed at Islamabad." (Emphasis added) ' Relying on the above referred orders passed by the Hon'ble Supreme Court, learned counsel for the petitioner submitted that now there is no justification or excuse for the Government for not holding the Local Government elections or for further postponing the same. 10. Learned counsel for the petitioner then referred to the 'Report on the Local Government Election Schedule on behalf of the Government of Sindh' submitted by the Government of Sindh in the above referred proceedings before the Hon'ble Supreme Court. For the purposes of this petition, the contents of this Report are relevant and as such the same are reproduced be Report on the Local Govt. Election Schedule on behalf of the Government of Sindh Further to the initial written reply of the Government of Sindh filed through the Chief Secretary Sindh on 12-4-2012, the report on behalf of the Government of Sindh is submitted hereunder:--- (1) That after passing of order by the Hon'ble Supreme Court, there has been sufficient deliberations on the subject. Three meetings have been held on 18-4-2012, 25-4-2012 and 26-4- 2012 at Government level. (2) That Provincial Government has decided that as far as possible suitable amendments in Local Government system 1979 would be made in consultation with the stakeholders and such legislation will be presented before the Assembly in shortest possible time. (3) That Provincial Government has decided that after finalization of Local Government law, notification for establishment of delimitation authorities will be issued which will complete the process of de-limitation of Local Councils within four months' time. The period is needed to meet the requirement of statute as well as the objections to be raised by general public with regard to
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de-limitation. This process will be completed in four months i,e, June, July, August and September, 2012. ' That in the month of October, 2012, the Provincial Government will be able to request the Election Commission, of Pakistan .To hold the Local Councils Election as per their schedule. ' That Provincial Government by putting all resources together . Will be able to complete the process of Local Councils Election by the end of December, 2012. ' That due to general elections ahead, the process of aforesaid elections may be affected." 11. In support of his submissions, learned counsel for the petitioner relied upon the following reported cases:-: a. PLD 2006 Supreme Court 697: ' Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others. ' In the above cited case, in view- of the statement given by the learned counsel for the Federal Government, the Federal Government was directed by the Hon'ble Supreme Court to do the needful for making the establishment and working of the Council of Common Interests functional expeditiously as far as possible but not later than six weeks. (b) PLD 2010 SC 265 ' Dr. Mobashir Hassan and others v. Federation of. Pakistan and others ' In this recent authority, the Hon'ble Supreme Court was pleased to follow the earlier decision given in the case of Wattan Party (supra) that it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent therewith, then to that extent the same is liable to declared un-Constitutional (Paragraph 74 at pages 118-119). In addition to the above, it was held inter alia by the Hon'ble Supreme Court in this recent authority that there is no cavil with the proposition that Article 8 of the Constitution, which is covered under Chapter-I of the Constitution and deals with fundamental rights, provides that any law, or any custom or usage having the force of law, insofar as, it is inconsistent with the rights conferred by this Chapter, to the extent of such inconsistency, shall be void; and the State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this Clause shall, to the extent of such contravention, be void (Paragraph 50 at page 95). (c) PLD 1963 Supreme Court 486: ' Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque. ' In this authority the Hon'ble Supreme Court was pleased to hold inter alia that it is the general principle that the superior Courts have an inherent duty, together with the appurtenant power, to ascertain and to enforce the provisions of Constitution in 'any case coming before them; that the Constitution being fundamental law of the State is higher in authority than any law, direction, or order made by anybody or any officer assuming to act under it; and that in case of any conflict, the fundamental law must govern, and the act, direction, order or law in conflict with it must be treated as inoperative and void. (Relevant portions at pages 489, 503 and 504). (d) PLD 1997 Karachi 663 (Full Bench - Sindh High Court): Messers Noori Trading (Pvt.) Ltd. And others v. The Federation of Pakistan and others: ' In the above cited case, it was held inter alia by the learned Full Bench of this Court that Courts are duty-bound to give effect to the plain and unambiguous language used in the. Constitution; that the Constitution is essentially in the nature of a statute and therefore the same rules, no doubt, would apply for construing provisions of the Constitution as govern construction of statute; that Constitution is the fountain-head of authority; that the Courts themselves are creation of the
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Constitution and they derive their sustenance from it; and that, the Courts are bound to give true effect to the intention of the makers of the Constitution. (e) 2001 CLC 148 (Division Bench Sindh High Court): Messrs Brooke Bond Pakistan Limited through Chief Executive v. Province of Sindh through Secretary, Ministry of Finance, Sindh and 3 others. ' In this case, it was held by, a learned Division Bench of this Court that it is a well-settled principle of law that if any statute violates or infringes upon any provision of existing statutes, then such provision of the newly-enacted statute would be void to the effect which offends or violates any provisions of an existing statutes; and that when there is a conflict between a statute and any provision of the Constitution, then the provision of the Constitution is to prevail as it is the Supreme Law of the Land and all other laws whether Federal or Provincial are subservient to it ('B' and 'C' at pages 152 and 153). 12. Mr. Shafi Muhammad Memon, the learned Additional Advocate-General representing respondents 1 and 2 (the Province of Sindh and the Governor of. Sindh, respectively), opposed this petition on the grounds that this matter is sub judice before the Hon'ble Supreme Court and that it is not possible for the time being for the Government of Sindh to hold the Local Government elections. When we asked the learned Additional Advocate-General about the reasons of the inability of the Government of Sindh for holding the elections, he made only one submission that the matter will be decided by the Sindh Assembly in due course for which no. Exact time frame can be given at this stage. We then inquired from the learned Additional Advocate-General that if this was the stance of the Government of Sindh, then why a statement in writing was submitted before the Hon'ble Supreme Court confirming that the Government had decided in principle to hold elections, . And why an undertaking was submitted before the Hon'ble Supreme Court by the Government of Sindh that elections will be held as early as could be possible. We also sought assistance of the learned Additional Advocate-General on the point as to whether the Government, by not holding the elections, is or is not violating the provisions of Articles 32 and 140-A of the Constitution. With profound respect, the learned Additional…
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