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Petitioner: Mir Shabbir Ali Khan Bijarini and Others VS Respondent: Federation of Pakistan & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Agha Faisal Title: Mir Shabbir Ali Khan Bijarini and Others vs Federation of Pakistan & others Case No.: C.P.NO.D-1310, 811, 844 & 845 OF 2018 Date of Judgment:2018-07-10 Reported As: PLJ 2018 Karachi 143, 2018 SHC 820 Result: Petition dismissed
Judgment Muhammad Ali Mazhar , J: These Constitution Petitions have been brought to challenge the first proviso attached to Sub-Rule (2) of Rule (8) of the Elections Rules, 2017 which provides that fraction of more than 0.5 may be counted as one seat and fraction of less than 0.5 may be ignored. All the petitioners in one voice have challenged the vires of the proviso being ultra vires to the Elections Act 1997 and also entreated for rectification in the delimitation of national assembly constituencies of District Kashmore, Jacobabad and Shikarpur . 2. The combined effect and crux of arguments articulated by the learned counsel for the petitioners is that before promulgation of the Elections Act, 2017 the delimitation of the constituencies were being carried out under Delimitation of Constituencies Act, 1974 and under Section 9(2) it was postulated that as far as may be the constituencies for the election shall be equal among themselves in population. So for intent and purpose, it was unequivocally well-defined that the constituencies in terms of populations shall be equal in size and no specific limit or percentage of deviation was specified. Earlier the population deviation was varied on case to case basis but in the current law this mischief and discontent has been removed and a specific limit of deviation if any has been placed under Section 20 (3) of the Election Act. It was further averred that on promulgation of the Election 2017 all the laws relating to elections have been consolidated in one Act and provisions relating to delimitation are enco mpassed in chapter III of the Act. The learned counsel for the petitioners further argued that the impugned proviso is inconsistent with Sections 19 (1) and 20 (3) of the Elections Act, 2017. The Respondent No.2 (ECP) acted beyond the compass and radius of Sections 19 (1) and Section 20 (3) of the Election Act, 2017 which only permits variation up to 10% plus-minus whereas the impugned proviso allows variation to higher limit. 3. The Election Commission of Pakistan, issued a Notification bearing No.F.8(I)/2018-Elec-I dated 15.1.2018, wherein they notified the share of Districts/Agencies, FATA and Islamabad Capital Territory regarding National Assembly and Provincial Assemblies seats. The districts Jacobabad and Kashmore have been discriminated in the
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allocation of seats and their votes have been debased. It was further contended that the respondent No.2 has allowed excess variation of 28% of population in district Jacobabad and 39% excess variation in District Kashmore which is higher than the permissible limit of 10% as provided section 20 (3) of the Elections Act, 2017. They further averred that it is well settled principle of law that Rules cannot go beyond the Act. The Rules cannot create new rights or subjugate the rights created under the parent statute, therefore, the impugned proviso is inconsistent with parent statute. Debasement of vote is caused when the weight of the vote is diminished. In the instant case 02 votes of the Kashmore district and 02 votes of the Jacobabad District are equa l to 01 vote of the neighboring district of Shikarpur. Debasement has been universally recognized as violative of one man, one vote the basic tenet of democracy and is declared unconstitutional. Debasement is defined in Black's law Dictionary as the act of reducing the value, quality and purity of something degradation. The principle of one man, one vote is fully entrenched in our country in view of Articles 51 (5) of the Constitution and 20 (3) of the Election Act, 2017. The ECP has radically disturbed the concept of uniformity of population by creating such irrational disparity and has made it difficult to conduct elections in an honest, just and fair manner on the contrary it amounts to commit gerrymandering. It was further argued that the administrative/revenue districts are distinct from the electoral units. The Administrative/revenue districts are formed on the basis of factors other than population. Article 51 (5) of the Constitution of Pakistan provides that the seats in the National Assembly shall be allocated on the basis of population in accordance with the last preceding census officially published. The learned counsel also invited attention to Rule 10 (4) of the Election Rules which permits the Commission to overlap the administrative boundary in exceptional circumstances. The ECP in the instant delimitation has overlapped district boundaries in the province of Baluchistan citing the below average population ratio as exceptional circumstances. 4. The learned counsel also focused on the Ouster Clause provided under Section 236(3) of the Elections Act, 2017, that "the validity of the delimitation of any constituency or of any proceedings taken or anything done by or under the authority of the Commission, under this Act shall not be called in question in any court". To cover up the bar contained in the ouster clause, the learned counsel argued that the constitutional jurisdiction of the High Court cannot be taken away by subordinate legislation and placed reliance on PLD 2014 Lahore 221, PLD 2001 SC 607, PLD 1996 SC 632, PLD 1972 SC 139 and PLD 1989 SC 26. It was further argued that the Rules have been framed under Section 239 of the Elections Act, 2017 by the ECP under the principles of delegated legislation which always considered to be subordinate legislation. The power and authority of the ECP to frame rules is subject to law and constitution. The learned counsel close down with the prayer that the first proviso of Rule 8(2) of the Election Rules, 2018 is ultra vires, illegal and unconstitutional being inconsistent with the parent statute hence the allocation of the NA seats while applying the formula provided in said rule may be set aside. In support of contention, the learned counsel for the petitioners cited following judicial precedents:- [1. 2003 SCMR 370 (Pakistan through Secretary Finance, Islamabad and others vs. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others). 2. 2005 SCMR 186 (Khawaja Ahmad Hassaan vs. Govern ment of Punjab and others). 3. 2013 SCMR 642 (Zarai Taraqiati Bank Limited and others v. Said Rehman and others). 4. PLD 2014 SC 389. Suo Motu Case No.1 1 of 2011. (Action taken on the news clipping regarding scandal. of billions of rupees of National Police Foundation Land) 5. 2014 CLC 335 (M.Q.M. and others vs. Province of Sindh and others). 6. PLD 2014 Lahore 221 (Arshad Mehmood vs. Commissioner-Delimitation Authority , Gujranawala and others). 7. PLD 2014 Supreme Court 531 (Province of Sindh through Chief Secretary and others vs. M.Q.M. through Deputy Convener and others). 8. 2015 SCMR 1152 (Sue Evenwel, ET AL vs. Greg Abbott, Governor of Texas ET AL). 9. Kirkpatrick v. Preisler [394 US 526 (1969)]. 10. Reynolds v. Sims [377 US 533]. 11. Wesberry v Sanders [376 US 1]. 12. AIR 1986 SC 434 (State of Madhya Pradesh and Others v. Devilal). 13. AIR 2009 SC 3278 (Association of Resident of Mhow (ROM) v. Delimitation Commission of India). 5. The learned counsel for ECP argued that under the law for the purpose of delimitation the Commission may hold inquiries, summon witnesses and record evidence and publish a preliminary report. The representation with regard to preliminary report may be filed within thirty days. Any voter may make a representation to the Commission and after hearing and considering the representations, amendments, alterations or modifications
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may be made. It was further contended that the ECP is cognizant of its duties commanded by the Constitution to conduct and organize free and fair elections. The learned counsel further averred that in the year, 2002 the Kashmore was Taluka of District Jacobabad but it was notified as independent district in 2004. As per Article 51 (5) of the Constitution, the Commission re-described the limits of the constituencies throughout the country before the General Election 2008 including NA-209 Jacobabad-cum-Kashmore (Old Jacobabad-II) and NA-210 Kashmore (Old Jacobabad-III). 6. The learned counsel for the Election Commission of Pakistan referred to sub-Article 3 of Article 218 of the Constitution and argued that it is the duty of the Election Commission to organize and conduct the elections and make such arrangement to ensure that the election is conducted honestly , fairly and in accordance with law. He further referred to Article 222 of the Cons titution of Islamic Republic of Pakistan, 1973 which germane to Electoral Laws and under clause "b" the Majlis-e-Shoora (Parliament) may by law provide inter alia for delimitation of constituencies by the Election Commission including delimitation of constituencies of local government. He also referred to the definition of population provided in clause (xxix) of Section 2 of the Elections Act, 2017 which means the population in accordance the last preceding censes officially published. The learned counsel for the Election Commission made much emphasis that according to Section 3 of the Elections Act, 2017, the Commission may regulate its own procedure. He also referred to us Chapter III of the 2017 Act which applies to the delimitation of constituencies. Under Section 17, the Commission has a right to delimit territorial constituencies for election of the National Assembly and Provincial Assembly and local government in accordance with the provisions of the Constitution, the Elections Act, 2017 and Elections Rules 2017. He further referred to Section 236 of the 2017 Act in which the jurisdiction of courts is barred with further emphasis that validity of the delimitation of any constituency or of any proceedings taken or anything done by or under the authority of the commission under this Act shall not be called in question in any court. The learned counsel for ECP cited following judicial precedents: [1. 2013 CLC 1712 (Abdul Qadir Patel vs. Chief Election Commissioner and 2 others). 2. PLD 2014 Lahore 330 (Pakistan Peoples Party vs. Government of Punjab and others). 3. 2014 YLR 1583 (Ghulam Mustafa and others vs. Commissioner/Delimitation Authority , D.G. Khan Division, Dera Ghazi Khan and others). 4. 2014 CLC 335 (M.Q.M. and others vs. Province of Sindh and others). 5. PLD 2012 Supreme Court 681 (Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others vs. Federation of Pakistan and 2 others). Art. 218(3). 6. PLD 2011 Supreme Court 997 (Watan Party another vs. Federation of Pakistan and others). 7. The learned DAG adopted the arguments of learned counsel for ECP. Whereas the learned A.A.G argued that there may be some lapses in the delegated legislation permitting to frame the rules by ECP devising the method for the allocation of seats but at present, entire nation is geared up for the elections to choose their representatives so at this stage if proviso under challenge is strike out, it will seriously hamper the general elections. In support of his contention, the learned A.A.G referred to the dictum laid down by the apex court in the case of Federation of Pakistan vs. Haji Muhammad Saifullah Khan, reported in PLD 1989 S.C. 166 . 8. Heard the arguments. All the petitioners in one voice pursued the declaration that the first proviso attached to sub- Rule 2 of Rule 8 the Elections Rules, 2017 is illegal, ultra vires and inconsistent with the Elections Act, 2017. Directions have also been sought against the respondents to carve out the constituencies under strict compliance of Section 19 and 20 of the Elections Act, 2017 and fix the average population ratio within the legally permissible 10% plus-mines variation. The anthology and conception of delimitation is provided under Section 19 of the Elections Act, 2017 in which for the purpose of election of the National Assembly the Commission may divide each province into as many separate territorial constituencies as the number of general seats allocated to that province under Article 51 of the Constitution and for the purpose of election of provincial assemblies, the Commission may divide each province into as many separate territorial constituencies as the number of general seats specified in Article 106. In tandem, the principles of delimitation are provided under Section 20 of the Elections Act, 2017. The conspicuous and salient features of the quantified principles to be kept in mind are the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies with the rider that as
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far as possible, variation in population in the constituencies shall not ordinarily exceed 10% and if it is exceeded in an exceptional case, the Commission shall record reasons. 9. In the sphere of Section 239 of the Elections Act, 2017, the Election Commission has framed Elections Rules, 2017. Chapter-III of the Rules is germane to delimitation of constituencies. In line with Rule 7 the Commission is vested with powers to carry out the delimitation of constituencies of general seats in an Assembly in accordance with section 19 and the procedure laid down in Chapter-III of the Rules on the basis of population in accordance with the last preceding census officially published. However, Rule 8 provides for configuration of quota in which the Commission may determine and notify the share of a district by dividing total population thereof with the quota per seat of National Assembly and will also determine and notify the share of a district by dividing total population with the quota per seat of the Provincial Assembly. It is significant to note that sub-Rule 2 of Rule 8 is relevant to the quota per seat of the National Assembly, whereas, in sub-Rule 4 the Commission may determine the share of district or quota per seat of Provincial Assembly but the proviso attached to sub-Rule 2 and sub-Rule 4 are couched in same phrasings and expressions which expound that on fraction of more than 0.5 shall be counted as one seat and fraction of less than 0.5 may be ignored. For the ease of convenience, Section 20 and Rule 8 of the Elections Rules, 2017 are produced as under:- Elections Act 2017 20. Principles of delimitation. -- (1) All constituencies for general seats shall, as far as practicable, be delimited having regard to the distr ibution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies. (2) For the purpose of delimiting constituencies for the general seats of the National Assembly for the Tribal Areas two or more separate areas may be grouped into one constituency. (3) As far as possible, variation in population of constituencies of an Assembly or a local government shall not ordinarily exceed ten percent. (4) If the limit of ten percent under sub-s ection (3) is exceeded in an exceptional case, the Commission shall record reasons thereof in the delimitation order . Elections Rules 2017 8. Determination of quota.-- (1) The Commission shall, after allocation of seats referred to in rule 7, determine the average population (hereinafter referred to as 'quota per seat' of a constituency for each Province, the Tribal Areas and the Federal Capital by dividing total population thereof by general seats in the National Assembly allocated to a Province, the Tribal Areas or, as the case may be, the Federal Capital. (2) The Commission shall determine and notify the share of a district or districts, an agency or agencies or, as the case may be, the Federal Capita l by dividing total population thereof with the quota per seat of the National Assembly as determined under this rule: Provided that a fraction of more than 0.5 may be counted as one seat and a fraction of less than 0.5 may be ignored: [emphasis applied] Provided further that the Commission may deviate from the principle laid down in the first proviso in exceptional cases for reasons to be recorded. (3) The Commission shall divide total population of a Province by the number of general seats in the Provincial Assembly to determine quota per seat in that Assembly . (4) The Commission shall determine and notify the share of a district or districts by dividing total population thereof with the quota per seat of the Provincial Assembly concer ned as determined under this rule: Provided that a fraction of more than 0.5 shall be counted as one seat and a fraction of less than 0.5 may be ignored. [emphasis applied] Provided further that the Commission may deviate from the principle laid down in the first proviso in exceptional cases for reasons to be recorded.
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10. It is also significant to note that Rule 10 emanates and originates command to the Delimitation Committee to obtain population data of last census officially published by Pakistan Bureau of Statistics along with relevant maps showing census charges, census circles and census blocks. It is also an obligation and sense of duty of Delimitation Committee to obtain district maps authenticated by Pakistan Bureau of Statistics or district head of Revenue Department indicating details of all administrative and revenue units to the level of a Patwari Circle or Tapedar Circle as well as prominent geographical and physical features. At the time of preparing draft proposals the Delimitation Committee is obliged to follow the principles of delimitation as laid down in Section 20 including the procedure provided under the Rules and the guidelines provided by the Commission from time to time. In sub-Rule 4 there is a strict condition that the constituency of an Assembly shall not ordinarily extend to more than one district except in exceptional circumstances for reasons to be recorded by the Delimitation Committee with a further stipulation that a Patwar Circle or as the case may be a Tapedar Circle shall be the basic unit for delimitation and it shall not be broken under any circumstances. At the same time sub-rule 5 of Rule 10 pave the way to start delimitation from Northern end of the district and proceed clock-wise in zigzag manner so that population among the constituencies of an assembly shall remain as close as may be practicable to the quota. 11. Though by means of these petitions, no more than the vires of proviso attached to the rules is under challenge but the learned counsel for the petitioners have also made much emphasis to the tune of excess variation of population in district Jacobabad and District Kashmore as compare to the neighboring district of Shikarpur. The Elections Rules, 2017 have been framed under Section 239 of the Elections Act, 2017 after prior publication and hearing and deciding objections or suggestions filed within 15 days. Nevertheless Section 20 of the Act accentuates that the population of constituency shall not ordinarily exceed 10% and in case it is exceeded the Commission shall record reasons in the delimitation order whereas, the proviso under challenge only exemplifies and differentiates that fraction of more than 0.5 may be counted as one seat. So in our considerate view and for all intents and purposes, there is no direct clash, collision and or inconsistency at the heart of proviso attached to the rule under challenge. One provides that the population shall not exceed 10% in any constituency whereas the later relates solitary to the allocation of seats. The second proviso of Rule 8 further envisages that the Commission may deviate from the principle laid down in the first proviso. Though the petitioners have challenged the variation in the constituencies of district Jacobabad and Kashmore but at the same time it cannot be lost sight that the proviso in the Rules added much prominence and distinction that the constituencies shall not ordinarily extend to more than one district and the Patwar Circle or Tapedar Circle shall be the basic unit which cannot be broken in any circumstances. The petitioners want that the entire delimitation exercise should be carried out again with strict observance and implementation of rigors of 10% variation in the population but keeping in mind the relevant proviso of the rules which are otherwise not under challenge in these petitions except the first proviso of Rule 8, there are many other characteristics and prerequisites which are to be in conformity with by the Delimitation Committee at the time of delimitation including the checks and control that constituencies may not extend to more than one district and the Patwar Circle or Tapedar Circle may not be broken. It would not be possible in all constituencies and districts to maintain strict harmony exactly to 10% variation and this maybe a far-sightednes s that variation over and above 10% is permissible to some extent but in such eventuality and contingency , the Commission has to record the reasons. 12. The Petitioner in C.P. No.D-844/2018 attached the copy of his representation filed on 16.01.2018 to the Election Commission of Pakistan. He contended in his representation that as per census the total population of the district Jacobabad is 1,006297 and total population of district Kashmore is 1,089169 collectively so the total population of both the districts is 2,095466. Keeping in mind the population ratio with 10% plus-minus according to the petitioners the Jacobabad and Kashmore district qualified for three seats of the National Assembly but the Election Commission of Pakistan reduced the National Assembly seats of district Jacobabad and Kashmore from 3 to 2 on the ground of overlapping of administrative boundaries. The petitioner in C.P. No.D-811 of 2018 has also attached with his petition the same copy of representation of the petitioner in C.P. No.D-844/2018, whereas, petitioner in C.P. No.D 1310/2018 filed his proposal to the Election Commission on 07.01.2018. He proposed to the Election Commission of Pakistan to delimit district Jacobabad and Kashmore though NA-208, 209 and 210
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may be allowed to continue under new numbers. If his proposal was taken into consideration by ECP, he basically wanted fresh delimitation of all constituencies in view of his proposal. The above proposals unequivocally show that the petitioner wanted delimitation and carving out of areas by overlapping population from one district to another through jumping and breaking TC which under the letters of law cannot be broken. They further want that the population of three districts Kashmore, Jacobabad and Shikarpur should be combined. On the contrary , learned counsel for the Election Commission of Pakistan made much emphasis that in 2002 the Kashmore was Taluka of district Jacobabad which was notified as an independent district in 2004. He further contended that as the delimitation has already been notified in 2002 and the seats in National Assembly remained same, therefore, the Commission re-described the limits of constituencies throughout the country before the General Election 2008 including NA 209 Jacobabad-cum-Kashmore (Old Jacobabad-II), NA-210 Kashmore (Old Jacobabad-III). 13. Ultra vires is a Latin phrase and expression which means "beyond the powers". If an act entails legal authority and it is done with such authori ty, it is symbolized as intra vires (within the precincts of powers) but if it carries out shorn of authority , it is ultra vires. Acts that are intra vires may unvaryingly be acknowledged legal and those that are ultra vires illegal. The validity of the subordinate or delegated legislation can be challenged on the ground of being ultra vires the enabling or parent Act. If the subordinate or delegated legislation is found in excess of the powers conferred by the parent Act or is made without following the procedure to be followed, the delegated or subordinate legislation may be declared invalid. It is a well settled that constitutionality of any law can be scrutinized and surveyed. The law can be struck down if it is found to be offending against the Constitution for absenteeism of lawmaking and jurisdictive competence or found in violation of fundamental rights. It is also established law that the vires of delegated legislation may be subject to judicial review. At the same time it also well-known through plethora of dictums laid down by the superior courts that the law should be saved rather than be destroyed and the court must lean in favour of upholding the constitutionality of legislation unless ex facie…
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