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Petitioner: Syed HAFEEZUDDIN---Petitioner VS Respondent: PROVINCE OF SINDH through Chief Secretary and 5 others---Respondents
Court Name: Sindh High Court Judge(s): Faisal Arab, Muhammad Iqbal Kalhoro Title:Syed HAFEEZUDDIN---Petitioner vs PROVINCE OF SINDH through Chief
Secretary and 5 others---Respondents Case No.: Constitutional Petition No.3081 of 2014 Date of Judgment:2015-10-03 Reported As: PLD 2016 Sindh 63 Result: Order accordingly. Judgment ORDER MUHAMMAD IQBAL KALHORO, J.---This is a bunch of petitions 185 in :number and have been filed in the backdrop of upcoming local bodies elections in Sindh. Although each petition contains voluminous facts, but under challenge are notifications issued by the Government of Sindh in pursuance of Section 10 (1) of the Sindh Local Government Act 2013 (2013 Act) notifying the number of Local Governments including District Councils and its Union Councils, Union Committees and Wards in Municipal Committees and Town Committees. Precisely the impact and effect of these notifications along with authority of the Provincial Government to issue them have been, inter alia, impugned here. The impact, as argued by the counsel of the petitioners respectively, has been a major change in formation of councils geographically in derogation to the principles of compactness, contiguity and territorial unity that are basics under the relevant law for carrying on any delimitation process. In connection with effect, the argument raised was around and about gerrymandering. To support the case on such premise, it was stated that the notifications were mala fide, aimed at manipulating the contours of the local areas in a manner to benefit those belonging to the present government. The local people stood disfranchised by such exercise as their local areas in some cases were included in the far-flung regions which were not contiguous with territorial unity. In other cases the areas were excluded from abutting parts of the object was to win the elections by hook or by crook. By referring to the relevant maps filed along with the petitions it was explained as to how the above stated principles of compactness, contiguity and
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territorial integrity and unity were violated and how the rural areas were joined with urban areas and vice-versa without maintaining population criteria as envisaged in Schedule I of 2013 Act. 2. After hearing all the counsel, we could note down that the controversy between the parties was two-fold. On the one hand it was stated that the Provincial Government was not competent to issue impugned notifications, and if at all, assuming that it had any authority to do so, the same was not exercised as per mandate of 2013 Act, hence, impugned notifications were illegal and void having no merits in the law. The other argument was that although the delimitation process for the upcoming elections was carried out by the Delimitation Officers, but they were basically the employees of Sindh Government and had not properly followed the procedure provided under the Delimitation of the Constituencies Act, 1974 (1974 Act). To highlight such limb of the arguments we would like to mention what Dr. Farogh Naseem, learned counsel for some of the petitioners stated during the course of hearing of the instant petitions. According to him, the whole exercise of delimitation was illegal and unlawful and in violation of Articles 37, 140-A, 187, 218(3), 219(d) and 222(d) of the Constitution; the Provincial Government was not empowered to issue notifications to delimit the councils as only the Election Commission of Pakistan (the Commission) was vested with such authority; that Section 10 of 2013 Act was in conflict with the relevant provisions of the Constitution regulating conduct of elections, therefore, it should be read down; this Court had already decided the issue in hand in the case of MQM and others v. Province of Sindh and others reported in 2014 CLC 335 when similar notifications were issued by the Government of Sindh and delimitation was carried out by it; that those notifications were annulled and declared ultra vires of the Constitution. He also added that this Court had made certain recommendations for holding the Local Bodies Elections in case of MQM supra but nothing materialized; that the said decision of this Court was challenged before the Hon'ble Supreme Court by the Government of Sindh in Civil Appeals (PLD 2014 SC 531) but all those appeals were dismissed and recommendations of this court vis-a-vis the mode and mechanism for holding the Local Bodies Elections were endorsed; that nothing was done by the Provincial Government to streamline the relevant laws accordingly in view of such recommendations and instead of rectifying the mistakes highlighted by the Superior Courts on the issue, again the process of delimitations of councils was replicated in the same manner and with the same equations that were struck down earlier by this Court and by the Apex Court. Dilating upon the above features of his case, he not only read out a number of excerpts from the decision of this court in the MQM's case, but also referred to several paras of the decision of the Supreme Court in the above case. In order to compare the scheme of the Act 2013, with the constitutional arrangement on the point and to highlight incongruity between the two, he took us to Sections 8, 10, 13 of the Act 2013 and the relevant Articles of the Constitution referred to above. He also added that the notifications impugned in the instant petitions and amendments brought in the 2013 Act through Sindh Local Government (Amendment) Act, 2015 were not in conformity with the benchmarks and guidelines given by the Supreme Court on the issue in the MQM's case; that before so notifying the areas through the impugned notifications, public objections were not invited from the local residents as required by the 2013 Act, therefore the very notifications were not even in conformity with the law and were against mandate under which the Executive Authority acted to notify delimitation of constituencies or declaring an area to be either an Urban or Rural.
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Mr. Farogh Naseem further argued that the Constitution amply provided that anything and everything concerning with the local government elections had to be done by the Commission and not by the Provincial Government; that the provisions of 2013 Act particularly Section 10 empowering the Provincial Government to delimit an area were ultra vires to the Constitution whereby only the Commission could conduct the elections, and since delimitation was essential part of the election, it was to be done by the Commission alone; that when any law was found to be in derogation of the constitutional provisions, the Court had the powers to strike it down and issue directions to the Government to make it in accordance with the mandate of the Constitution. He also referred to Ordinance No.VIII of 2014 promulgated on 14.10.2014 whereby certain amendments were brought in 1974 Act and Section 3A was introduced therein, which empowers the Commission to delimit the constituencies in local government elections as well and stated that the delimitation of constituencies could only be done under the Act and rules made thereunder. Learned counsel also referred to PLD 1958 SC 104 and PLD 2012 SC 681, PLD 1958 SC 104, PLD 2014 Lahore 221, 1994 SCMR 1299. PLD 2008 SC 779, PLD 2009 SC 644, 2014 MLD 561, PLD 1993 SC 473, 2003 YLR 2449, PLD 1986 SC 35 and 2002 SCMR 1747 in support of his arguments. Senior counsel Mr. Jhamat Jethanand representing some of the petitioners also assisted this Court on the issue and stated that in the aftermath of amendments in 1974 Act the rules were framed on 1.1.2015 wherein the entire procedure qua delimitation, and which authority was competent to carry on such exercise were provided. Therein appeared no role of the Provincial Government to issue notification in that regard and only the Delimiting Officer appointed by the Commission was competent to declare delimitation of the constituencies. He further added that while doing so, the Delimiting Officer, however, had to keep in mind the criterion of compactness, contiguity and territorial unity of the areas in question as provided under the law so that any manipulation in the election process could be checked in advance. Responding to a Court query, he admitted that power to categorize an area to be either rural or urban vested in the Provincial Government and not with the Commission; however he still maintained that insofar as elections of local government were concerned only the Delimiting Officer had the authority to separate from or blend together the regions of the rural areas into urban or vice versa to delimit a particular constituency. To explain his point he read out sections 8, 9, 10, 11 and 13 of the 2013 Act. Lastly he pointed out that although a Deh could not be divided for the purpose of elections but the Provincial Government had done so with mala fide intentions in order to win the elections at every cost. 5. Mr. Farooq H. Naek, learned advocate argued the case on behalf of the Province of Sindh. He raised a preliminary objections to the maintainability of all these petitions by referring to Article 225 of the Constitution and stated that since in all these petitions the questions regarding delimitations had been agitated, which was the integral and main part of any elections, jurisdiction of this court under Article 199 of the Constitution could not be invoked as all disputes relating to the elections were to be brought before the Election Tribunals for adjudication. He further added that Section 10 of 1974 Act provided adequate and efficacious remedy to the petitioners to challenge delimitation of a given constituency before the Commission within 15 days of the order and in presence of such remedy the instant petitions could not be entertained. Regarding the argument of gerrymandering, he explained that before 2013, the situation was altogether different as at that time the delimitations of the constituencies were carried out by the Provincial Government that were challenged and set
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aside by this Court and subsequently the order of this Court was maintained by the Honourable Supreme Court. But, then in the light of guidelines given by the Apex Court in MQM's case, he submitted that necessary amendments were introduced in 1974 Act and 2013 Act and this time the Commission had been tasked to hold elections of local government in Sindh and the entire delimitation process had been carried out by it as required under 1974 Act and 2013 Act. He in this connection referred to several sections of 1974 Act besides quoting section 31A of the 2013 Act. He next contended that there was no cavil to the fact that the Commission under the Constitution and the relevant laws was mandated to hold elections; and in line with such mandate it was undertaking the whole exercise in pursuance of which schedule of the election had already been announced, therefore, the entire process could not be derailed on the basis of some interlocutory orders passed by the Delimitation Officers because even after the elections, a losing candidate could challenge the elections on the ground of improper delimitation in the constituency prejudicial to his right of representation. He also read out many excerpts from the decision of the MQM's case decided by the Supreme Court to show that elections process started with a preliminary report of delimitation published in the official gazette and not from announcement of the election schedule. In support of his arguments lie also relied upon cases reported in PLD 2014 SC 686 and 2015 SCMR 233. Mr. Mukesh Kumar learned Additional Advocate General adopted the arguments of Mr. Farooq H. Naek, advocate and to further elaborate the point that once the process of elections got initiated then merely on some complaints the whole process could not be blocked. He relied upon cases reported in 1996 (6) SCC 303 and 2009 (5) SCC 404, which are from Indian jurisdiction. He further added that provincial government had not delimited the constituencies but the exercise Was done by Delimitation Officers appointed by the Election Commission and only after the order under Section 3A of 1974 Act, the impugned notifications had been issued. Mr. Ainuddin Khan learned DAG also adopted the arguments of Mr. Farooq H. Naek and referred to notifications pertaining to the process of elections. We have considered the arguments of the parties and perused the relevant law as well as the case laws cited at the bar. The dispute is mainly, as noted above, over the delimitation process and the validity of the notifications issued by the Sindh Government in exercise of the powers conferred under section 10(1) of 2013 Act amended by the Sindh Local Government (Amendment) Act, 2015 notifying the number of Local Governments including District Councils and its Union Councils, Union Committees and Wards in Municipal Committees and Town Committees. All the contesting parties in these petitions are unanimous over the point that it is the Commission, which has to undertake the process of holding elections in terms of Article 140A(2) of the Constitution which mandates that "Elections to the local governments shall be held by the Election commission of Pakistan". Article 219(d) of the Constitution speaks of the duties of the Election Commissioner that he shall be charged with "the holding of general elections to the National Assembly, Provincial Assemblies and the local governments". Regarding obligations of the Commission towards elections to make it just, fair and transparent, it is provided in Article 218 (3) that "It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the eloction is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against". The expression "to ensure that the election is conducted honestly,
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justly, fairly and in accordance with law, and that corrupt practices are guarded against" denotes importance the legislature attaches to transparency and fairness of the election, the reason is obvious, that is to enhance public confidence in the whole process and to make it more permeating so that a wide range of people shall involve themselves in decision making process concerning their lives and to get maximum benefit out of it. The corrupt practices, which can wreak havoc qua the results of the elections and can have far-reaching adversarial effects on the very process of election, are bound to raise questions over the eligibility of the returned candidates. Thus A deriding the very purpose of the elections, that is to transfer power at grassroots level to the people so that they can take appropriate and corresponding measures for their uplift. Therefore, it is imperative for the Commission, as per its mandate under the Constitution to devise and supervise every step till the elections are finally held. In the given context its role as a neutral empire assumes importance that has to be discharged by it independently. Any sitting government contesting the elections is always to be treated as a party at par with other vying candidates. To conduct elections with honesty, justness and fairness, it becomes incumbent upon the Commission to also decide elections related issues occurring either before or after the elections in a transparent manner and in according with law. When the Commission is tasked to guard against the corrupt practices, it entails that not only it shall take over the charge of all the affairs relating to the election but it has to watch over any maneuvering, in whatever shape and nature, in the delimitation process. Under the law the Commission can take note of and undo any notification by the Government notifying certain areas, which are urban, as rural or vice versa, if it is done to gain some advantage in the elections. It can certainly make necessary amendments in the constituencies as provided in 1974 Act to avoid imbalance in population ratio and reverse the new changes made by the government to gain edge over the opponents in the elections. We have observed that the Sindh Government in a number of constituencies has made some changes; either by including the already notified rural areas into urban or vice versa or excluding the certain areas from the place of their origin and placing them into the regions far away from their original place in disregard to the principles of contiguity, closeness and homogeneity. In some cases union councils have been divided in a way that a village has been separated into two different union councils or union council has been spread in a way to include the areas across the river, and dehs, which are separated from each other, have been blended together in one Union council. Learned counsel for the petitioners pointed out that when with these allegations the petitioners went before the Delimitation Authorities for redressal of their grievances, their pleas were turned down through non-speaking orders (which are impugned here) in violation of relevant laws and more specifically of Section 24A of the General Clauses Act, whereby every Authority has to justify its decision through reasons. It is quite obvious from the hitherto discussion that the primary function of holding the local government election in the province is upon the Commission. It has to ensure that the process of elections shall be completed in a manner free from doubt of contriving and maneuvering in the delimitation, which must be carried on in accordance with the principles of delimitation as set out in sections 10(3) and 12 of 2013 Act, in addition to Section 9 of the 1974 Act. The petitioners have agitated the delimitation process to be wrong and in violation of the principles of contiguity, closeness and homogeneity by relying on maps of the constituencies showing areas carved out of the rural areas and merged into urban areas or
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vice versa and in some cases many union councils containing contiguous areas have been disengaged from each other and incongruous areas have been included in one union council. In our view the Commission has failed to assert its role, power and responsibility of being neutral umpire in the whole process and correct the wrongs by resorting to Section 10A of 1974 whereby it can suo motu take notice of all these irregularities highlighted herein above and correct the same. It is noteworthy that even the directions of the Honorable Supreme Court given in the case of Province of Sindh v. M.Q.M. and others (PLD 2014 SC 531) in para No.79, which for ready reference are reproduced herein under, have not been completely heeded in letter and spirit while delimitating the constituencies. "79. For what has been discussed above, while dismissing the appeals/petitions filed by the Government of Sindh, we are persuaded to direct the Federal Government to make necessary enactments to empower the Election Commission of Pakistan to carry out the delimitation of constituencies of local governments. The Government of Sindh is also directed to make necessary corresponding amendments in the Sindh Local Government Act, 2013. These are the detailed reasons for our short order dated 20.3.2014 which is reproduced hereinbelow:- "We have heard learned counsel for the appellants, for the respondents, learned Advocate General Sindh, learned Attorney General for Pakistan and learned amici curiae. For reasons to be recorded later in the detailed judgment, we hold, declare and direct as under:- (i) that the power to hold elections of the Local Government stands vested in the Election Commission of Pakistan in terms of Article 140A of the Constitution of Islamic Republic of Pakistan. The Election Commission of Pakistan has been mandated to "organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against" (Article 218(3) of the Constitution); (ii) that we uphold para 60(e) of the judgment of the Sindh High Cour t dated 26.12.2013; iii) that since the delimitation of constituencies of the Local Government is part of the process of organizing and holding elections honestly, justly and fairly which is the Constitutional mandate of Me Election Commission of Pakistan, the power to carry out such delimitation should vest with the Election Commission of Pakistan; that as the holding of election of Local Government has been delayed for more than nine years, which is violative of the Constitutional command, we are persuaded to direct the Governments, Federal and Provincial (of Sindh) to carry out appropriate amendments/ legislation to empower the Election Commission of Pakistan to initiate and carry out the process of delimitation of constituencies for the Local Government Elections. This exercise should be completed within a period of five months from today and the Election Commission of Pakistan shall thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/ amendments in laws in terms of this order. The Election Commission of Pakistan shall further ensure that the announcement of election schedule and the process of holding it is complete by or before 15th of November, 2014. The cases stands disposed of in terms not ed above. (underlined by us for emphasis) Any process meant for people, like the elections, which does not envisage speedy dispute resolution in accordance with law is bound to bring dismay and disagreement among the masses. We have been informed by Mr. Farooq H. Naek that after the decision of the Apex Court in MQM's case the amendments have been made in Section 3 of 1974 by introducing section 3A by virtue of which the power to delimit the constituencies (which was earlier limited to the seats of National and Provincial Assemblies) for the purpose of local elections has been conferred upon the Commission. That power had to be effectively used to check any gerrymandering was, however, the contention of Mr. Farogh Naseem. According to him if the constituencies are bifurcated in the manner, which has caused wide-spread unrest and resentment in the society, and if those complaints have not been attended to and decided by the Commission in accordance with law, it would bee
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indicative of an ineffectual approach towards the election process by it. An argument was made before us by Mr. Farooq H. Naek that after the directions of the Honourable Supreme Court, the changes have been made in the law and since the whole delimitation process has been carried out by the Commission and thereafter due procedure of law has been followed to decide the objections of the petitioners over the format of the constituencies, the situation cannot be equated with the one prevailing in 2013 when delimitations were effectuated by the Provincial Government and set at naught by this Court. To a Court's query that as to how the exercise of delimitation could be termed fair and transparent and in accordance with the principles laid down in Sections 10(3) and 12 of 2013 Act coupled with Section 9 of the 1974 Act, when apparently there appeared dislocation of the many areas in different constituencies from their original place and the misbalance in the census blocks to the disadvantage of local people. Mr. Farooq H. Naek replied that these questions could not be taken up by this Court while sitting on the Constitutional jurisdiction for the reasons (i) they were factual in nature, (ii) they were adjudicated upon by the Delimitation hierarchy after considering objections of the parties concerned and (iii) they were interlocutory in substance and nature which could be agitated before the Elections Tribunal after the election was over. We however do not concur with such view. In innumerable petitions before us there was nothing on record to show that due hearing i.e. inviting objections in terms of sections 8, 10, 13 and 14 of 2013 Act was afforded to the petitioners. Even in some cases it was found that the decisions of the Delimitation Officers, whose orders were challenged in appeals before Delimitation Authority, were maintained on the basis of their consent recorded during the hearing. In our view it is a gross disregard to the provisions of fair trial encapsulated in Article 10-A of the Constitution that an appellate Authority should base its decision merely on the consent of the officer whose order is impugned before it without considering the contentious issues. This Court therefore cannot remain oblivious to what is happening in the delimitation process when it is challenged under Article 199 of the Constitution on the grounds stated…
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