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Petitioner: (1) M.Q.M & another (2) Syed Zafar Ali Shah and Others VS Respondent: Province of Sindh & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Sadiq Hussain Bhatti Title:(1) M.Q.M & another (2) Syed Zafar Ali Shah and Others vs Province of Sindh
& others Case No.:Const. Petition No.D-5098, 4559, 4463, 4521, 4803, 5023, 5080, 5091 5104, 5172, 5294, 5329, 5369, 4724, 4763, 5325 & 5404/2013 Date of Judgment:2013-12-26 Reported As: 2013 SHC 455 Result: Petition Disposed of Judgment Muhammad Ali Mazhar, J: This common judgment will dispose of all the aforesaid constitutional petitions filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petitions have been brought to challenge the delimitation process carried out and completed by the Government of Sindh for various Union Committees, Union Councils, Town Committees, Municipal Committees, Municipal Corporation and Metropolitan Corporation(s) in the Province of Sindh. The petitioners have also questioned and assailed the Notifications whereby the Deputy Commissioners of the respective districts were appointed Delimitation Officers in respect of local councils established under the Sindh Local Government Act, 2013. Some of the petitioners have also challenged the vires of amendments made in the Sindh Local Government Act, 2013 through Sindh Local Government (Third Amendment) Ordinance, 2013 which was promulgated on 13.12.2013. Keeping in view the exigency and urgency in the matter , all learened counsel appearing for the parties, the petitioners present in person and the learned Advocate General Sindh agreed that let all the aforesaid petitions be heard and disposed of at katcha peshi stage and they argued their cases extensively and comprehensively . 2. Dr.Farogh Naseem, learned counsel for the petitioner in C.P.No.D-5098/13 argued that the petitioner is one of the leading political parties and in the last general elections it had secured third highest votes and presently it has 25 numbers of seats in National Assembly and 7 members in Senate and 51 seats in the Provincial Assembly of Sindh. He referred to the definition of word "population" provided under Section 3 of the Sindh Local Government Act, 2013 (hereinafter referred to as Act, 2013) according to which the population means the population in accordance with the last census officially published, which was held in the year, 1998. He referred to paragraph 5 of the petition in which he has shown us a table highlighting five districts of Karachi which includes the urban and rural population both. After promulgation of the Act, 2013 the same was amended on 2.11.2013 through Sindh Local
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Government (Amendment) Act, 2013 whereby the Schedule-I part "C", the population in Union Council was amended within the range of 10,000 to 15,000 and population of Wards in Town Committee population was figured between 2000 to 3000 while the population in the Union Committee in Metropolitan Corporation fixed between 40,000 to 50,000. Through the same amendment the proviso attached to Section 15 in the original Act of 2013 was omitted. Meanwhile, the 2nd Amendment Ordinance, 2013 came into effect and sub section (1) of Section 15 whereby after the word "district" the words "except Karachi Division" was added. 3. He further argued that on 12.11.2013, a notification was issued by the Secretary to Government of Sindh, Local Government Department whereby it was notified that consequent upon the amendment in Sindh Local Government Act, 2013, the District Council Karachi has ceased to exist. It was further stated in the notification that Union Councils finalized during delimitation process in the erstwhile District Council Karachi shall be treated as Union Committee in the respective District Municipal Corporation. Learned counsel argued that this notification was issued illegally as there was no lawful justification to treat the delimitation of Union Councils as delimitation of Union Committees. He further argued that in the original Act, 2013 there was no limit of population attached in part "C" of Schedule-I but it was provided that population of Union Council and the Union Committee would be as may be determined by the Government. He further argued that due to wrong process, a notification was issued on 21.11.2013 in exercise of powers conferred by the Section 8 of the Act, 2013 whereby the Government delimited the rural areas of the Union Councils in Karachi Division as per Schedule appended to the notification, through which 20 Union Committees and 21 Union Councils in District Malir have been created. He further argued that two more Union Councils Shah Mureed and Mai Garhi, which were otherwise falling in District East Karachi were also inducted in District Malir in order to manipulate the electoral college. He further argued that one more Union Council Gabopat was in district Karachi West has now been inducted into District South unlawfully. 4. The learned counsel also referred to the delimitation proposal 2013 submitted by the Deputy Commissioner Karachi, South to the Commissioner Karachi on 25.10.2013. Learned counsel argued that in the proposal population of 17 Union Committees has been submitted on the basis of estimation, as according to him the delimitation was required to be made according to census carried out in the year 1998. He further argued that 05 more Union Committees have been shifted from District East to District Malir vide notification dated 21.11.2013 in order to manipulate the electoral college. It was further averred that during the pendency of this petition through which several unlawful Acts were under challenge, the Government of Sindh promulgated the Sindh Local Government (Third Amendment) Ordinance, 2013 on 13.12.2013, but it was made effective from 16.9.2013. During the course of hearing, an application under Order 6 Rule 17 CPC was filed by learned counsel for the petitioner along with copy of amended petition challenging the Third Amendment Ordinance. Copy of the application was supplied to learned Advocate General and he put to notice under Order 27-A C.P.C. The application was allowed and amended petition was taken on record. 5. Through the amended petition, the petitioner has also challenged Section 3 and 8 of the Third Amendment Ordinance, 2013. According to the last amendment made through Section 8 in Schedule-I part "C" in clause (b) under the heading "Union Committee in Metropolitan Corporation" for the figure s 40,000 to 50,000, the figures 10,000 to 50,000 have been substituted. He argued that this huge fluctuation and inflation in the figures have been made in order to commit gerrymandering and ruling party wants to win over through gerrymandering and unlawful means. Vast discretion has been conferre d upon through this amendment and it is left at the leisure and pleasure of the Government to delimit any Union Committee to satisfy their own whims within the fluctuated figure of population limit ranging from 10,000 to 50,000, while through the earlier amendment it was only 40,000 to 50,000 which could be treated the marginal and reasonable fluctuation to some extent, but at present huge fluctuation and inflation has been created without any lawful justification and to discriminate amongst the population of various Union Committees so the mala fide and nefarious aims and objectives of the gerrymandering may be achieved. Learned counsel also assailed another amendment made in Section 13 of the original Act of 2013, a proviso has been added through which unbridled powers have been given in the hands of delimitation officer that if he reaches
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to the conclusion that an area which is rural, has acquired the status of urban area at the time of delimitation, he may declare such rural area to be urban area and such area shall be deemed to be an urban area. 6. He further argued that the proviso added in Section 13 with retrospective effect cannot be read in isolation but through this amendment an attempt has been made again for the purposes of gerrymandering to isolate the sub - section (1) of Section 13 so the basic requirement for inviting objections from the residents of an area may be dispensed with and in the haphazard way or manner any rural area may be inducted within the urban area without fulfilling the basic requirements of law. He further argued that all the amendments made in the Third Amendment and the process adopted for the delimitation is in utter violation of Article 25 of the Constitution. The Government radically disturbed the concept of uniformity of population by creating such irrational disparity in which it is difficult for the election commission to conduct the Local Government Elections in Sindh honestly , justly , fairly and in accordance with law and if any election is conducted in a non-transparent manner it will be a serious violation of Articles 218 & 219 and 9, 17 and 25 of the Constitution of Pakistan. He argued another aspect as well that each Union Committee will get equal funding, which will be a grave disparity and discrimination that Union Committee of 50,000 and the Union Committee of 10,000 population will get the same finance and funding. This disparity has been created so that a Union Committee with 10,000 population and Union Committee with 50,000 population shall have same voting rights in indirect elections which is also sequel of gerrymandering and also against the Article 25 of the Constitution. 7. He further referred to Section 34 of the Sindh Local Government Act, 2013 in which it is clearly provided that the Election Commission of Pakistan shall organize and conduct the elections and to make necessary arrangement as are necessary to ensure that the election is conducted honestly, justly, fairly and the corrupt practice are guarded against. In the end learned counsel prayed that the Notifications dated 12.11.2013, 21.11.2013 and 25.10.2013 (annexures F, G, H and J) relating to delimitation and final proposal for the District Malir and South be declared as ab initio void and illegal. He also prayed that direction be issued to the respondents to conduct delimitation strictly as per census of 1998 and the population standard given in the Act 2013 for Union Committees. He further prayed that Section 3 and 8 of the Sindh Local Government (Third Amendment), 2013 so also Section 10(2)(b) of Sindh Local Government Act, 2013 be declared unconstitutional and void ab initio. In support of his arguments he relied upon the following case law and material. (1). PLD 1958 S.C. 41 (M/s. East and West Steamship Co., v. Pakistan and others). Equality is not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred. If this is the correct position, the only question that would then arise would be the delegation of legislative power. If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power , and also for equality if the standard is reasonable. If no standard is set up to avoid the violation of equality , those exercising the power must act as though they were administering a valid standard. For this reason there is a need for a judicial revie w to see whether or not power delegated has been exercised arbitrarily . Willi' s Constitutional Law , 586. (2). PLD 1999 S.C. 1026 (Federation of Pakistan and others v. Shaukat Ali Mian and others) "Article 25. Equality of citizens. Discriminatory provision. Concept. Marked distinction exists between a provision of a statute which may be ex facie, discriminatory and a provision thereof which may be capab le of being pressed into service in discriminatory manner . Former provision would be liable to be struck down on the ground of violation of Article 25 of the Constitution but the latter provision cannot be struck down on the ground that same was capable of being used in discriminatory manner . Any discriminatory action which may be taken pursuant to such provision can be struck down. (3). 2004 SCMR 1903 (Ghulam Mustafa Insari and others vs. Government of the Punjab and others). Courts, generally lean towards upholding the constitutionality of a statute rather than destr oy it unless such a statute is, ex facie discriminatory or capable of discrim inatory application and otherwise clearly violative of any provision of the Constitution. (4). PLD 2010 S.C. 265 (Dr.Mobashir Hassan and others v. Federation of Pakistan and others). Articles 184, 185 & 186. Duty is cast upon the Supreme Court that it should normally lean in favour of constitutionality of a
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statute and efforts should be made to save the same instead of destroying it. Princ iple is that law should be saved rather than be destroyed and the court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments, unless ex facie, it is violative of a constitutional provision. Where a statute is ex facie discriminatory but is also capable of being administered in a discriminatory manner and it appears that it is actually being administered to the detriments of a particular class in particular , unjust and oppressive manner then it has been void ab initio since its inception. (5). PLD 2010 Federal Shariat Court 1 (Dr.Muhammad Aslam Khakhi vs. State and others) . Fundamental rights guaranteed by the Constitution are firmly based upon various Injunct ions of Islam. Presumption of constitutionality is attached to every legislative instrument and courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution. (6). 1991 SCMR 1041 (I.A. Sharwani & others v. Govt. of Pakistan). Article 25(1). All citizens are equal before law and entitled to equal protection of law. State, however, is not prohibited to treat its citizens on the basis of a reasonable classification. Reasonable classification. Basis or criterion for classification as to avert violation of Article 25(1). Clause (1) of Article 25 of the Constitution of Pakistan (1973) enshrines the basic concept of religion of Islam. However, this is now known as the golden principle of modern jurisprudence, which enjoins that all citizens are equal before law and are entitled to equal protection of law. However, the above clause does not prohibit treatment of citizen by a State on the basis of a reasonable classification. (7). 1992 SCMR 563 (Inamur Rehman v. Federation of Pakistan). Article 25. Equal protection to all is the principle on which rests justice under the law. Law should be saved rather than destroyed and Court must lean in favour of upholding the Constitutionality of a legislation. Rule of Constitutional interpretation was that there was a presumption in favour of the Constitutionality of legislative enactment. Where, however , there was on the face of a statute no classification at all and no visible differentia, with reference to the object of the enactment as regards the person or persons subject to its provision, then the presumption was displaced. Court could not be asked to presume that there must be some undisclosed or unknown reasons for subjecting certain individuals to discriminatory treatment, for in that case Court would be making a travesty of the Fundamental Right of equality before law enshrined in Article 25. (8). 1996 SCMR 700 (Central Board of Revenue v. Seven-up Bottling Company Pvt. Ltd.) . Article 25, Constitution of Pakistan (1973), guarantees for equality of all citizens before law and their entitlement to get equal protection of law. Article 25 also casts a duty on the Government to ensure enactment of laws which should provide equal protection to all citizens. Such rights of citizens cannot be defeated on the ground of waiver . (9). 2002 SCMR 312 (Zaman Cement Company Pvt. Ltd. v. Central Board of Revenue & others). Article 25. Legislature and other Taxing Authorities have power to classify persons or properties into categories and subject them to different rates of taxes, but there exists no power to target incidence of tax in such a way that similarly placed persons be dealt with not only dissimilarly, but discriminatingly. Function of judiciary is not to legislate or question the wisdom of Legislature in making a particular law nor it can refuse to enforce law even if the result of it be to nullify its own decision, provided the law is competently made. Vires of law can only be challenged being violative of any provision of the constitution, but not on the ground that it nullifies the judgment of superior court. (10). Zaibtun Textile Mills Ltd. v. Central Board of Revenue). Delegation of legislative powers. Legislature can delegate authority to subordinate or outside authorities for carrying laws into effect and operation. Such power of delegation, inherent and ancillary to legislation. Legislature retains legislative powers intact to do away with agency. Constitutional theory underlying doctrine of impossible delegation of legislative power, held, not applicable. Constitution does not lay down and prescribe limits within which such delegation permissible. Competency of Legislature to delegate its power to be determined by Courts in exercise of their inherent judicial power under Constitution. No uniform test to determine competency of legislature to delegate such power. Constitution of Pakistan.
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(11). PLD 2012 SC 923 (Baz Muhammad Kakar and others v. Federation of Pakistan and others). Unconstitutional part of a statute. Severance from the remaining (valid) part of statute. Scope. Doctrine of severability permitted a court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder , but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder , the court would declare the entire Act void. (12). 2013 SCMR 1752 (Contempt proceedings against Chief Secretary, Sindh and others). Neither a non- civil servant nor a civil servant from non-cadre post could be transferred to a cadre post in Government by way of deputation as same would affect rights of civil servants serving in Government and create sense of insecurity in them. Impugned legislations meant for specific class of persons was violative of Article 25 of the Constitution and were violative of Articles 143 & 240 of the Constitution and would encourage nepotism and discourage transparent process of appointment of civil servants in prescribed manner. Provincial Assembly could not change structure of service laws in conflict with provisions of Article 240(b) or Article 242(1B) of the Constitution. Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae. Supreme Court struck down impugned legislations. Principles. Mala fide cannot be attributed to the legislature, but if a legislature deliberately and repeatedly embarks upon a venture to nullify considered judicial verdict in an unlawful manner, trample the constitutional mandate and violate the law, then it is difficult to attribute bona fide to it either. (13). PLD 2012 SC 681 (Workers' Party Pakistan and others v. Federation of Pakistan and others) Article 218(3) Election Commission. Duties and powers. Words "justly", "fairly" and "honestly" used in Article 218(3) of the Constitution. Implications. Said words implied that the Election Commission was under a direct constitutional obligation to exercise all powers vested in it in a bona fide manner, meeting the highest of standards and norms, therefore, as a natural corollary all discretionary powers were also to be exercised and tested against such standards. Election Commission was charged with the duty to 'organize' and 'conduct the election'. Article 218(3) implied that the Election Commission was responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. Constitution conferred such responsibility on the Election Commission and ensured that all activities both prior, on and subsequent to Election Day, that were carried out in anticipation thereof, adhered to standards of justness and fairness, were honest, in accordance with law and were free from corrupt and/or illegal practices. (14). PLD 1993 S.C. 473 (Mian Muhammad Nawaz Sharif v. President of Pakistan). Right conferred by Article 17 includes not merely the right to form a political party but comprises also other consequential rights. Guarantee "to form a political party" must be deemed to comprise also the right by that political party to form the Government wherever the said political party possesses the requisite majority in the Assembly. Any unlawful order which results in frustrating such activity, by removing such party from office before the completion of its normal tenure would, therefore, constitute an infringement of Fundamental Right guaranteed in Article 17(2) of the Constitution. (15) PLD 2009 Lahore 268 (Muhammad Umer Rathore v. Federation of Pakistan). Theory of "Reading Down". Applicability . Scope. "Reading Down" theory is a rule of interpretation, resorted to by the courts, when provision of law is found to be such that it offends fundamental rights or it falls outside the ambit of competence of a particular legislature. (16) PLD 1997 S.C. 582 (M/s.Elahi Cotton Mills Ltd. v. Federation of Pakistan). Theory of reading down is a rule of interpretation which is resorted to by Courts when they find a provision read literally seems to offend a fundamental right or falls outside the competence of the particular legislature. 8. The learned counsel for the petitioner referred to the book "Treatise on Constitutional Law, Substance and Procedure" (Third Edition) by Ronald D. Rotunda, Volume 3, in which various dictums of U.S. Supreme Court have been referred which are as under:- (a) In Baker v. Carr, two years after Gomillion, the Court found reapportionment cases to be justiciable based on the more general equal protection clause of the Fourteenth Amendment. Colegrove was distinguished and
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the Court held that debasement of a person's vote by malapportionment is a violation of the equal protection guaranty of the Fourteenth Amendment. This claim was significantly different from those based on the nonjusticiable republican form of government clause. Ref. 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) on remand 206 F .Supp. 341 (M.D. T enn. 1962). (b) The value of the right recognized in Baker was explained in Reynolds v. Sim which created the one person, one vote principle grounded in the equal protection clause. Ref. 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), rehearing denied 379 U.S. 870, 85 S.Ct. 12, 13 L.Ed.2d 76 (1964). (c) In Sailors v. Board of Education, the Supreme Court approved the choosin g of county school board members by a method whereby each local school board appointed only one delegate and was allowed only one vote at the caucus convened to elect the county school board, even though the districts represented by the local school boards were of disproportionate population. Ref. 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967). (d) In Board of Estimate v. Morris, the Justices unanimously ruled that New York City's Board of Estimate was subject to the one person, one vote principle. The Board of Estimate was composed of the elected presidents of each of the city's five boroughs, each of whom cast one vote on the Board, and three officials who were elected by city-wide ballot (the city's mayor, comptroller, and city council president). There was a vide disparity in the populations of each of the boroughs, so that the citizens living in the least populous boroughs had a greater impact on the election of the Board than did persons living in the most populous boroughs. The Board did not have general legislative authority over the city but it did perform a variety of functions similar to those performed by municipal governments, including the calculations of certain utility and property taxes, zoning authority, fixing the salaries of city officers, and a sharing of legislative function with the city council regarding capital and expense budgets. The Court found that the array of powers possessed by the Board were sufficient to bring it within the requirements of the equal protection clause one person, one vote principle. (e) In Federal Elections. In Wesberry v. Sanders the Supreme Court required states to draw their congressional districts so that as…
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