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Petitioner: ARSHAD MEHMOOD VS Respondent: COMMISSIONER/DELIMITATION AUTHORITY, GUJRANAWALA and others
Court Name: Lahore High Court Judge(s): Muhammad Farrukh Irfan Khan, Atir Mahmood, Syed Mansoor Ali Shah Title: ARSHAD MEHMOOD vs COMMISSIONER/DELIMITATION AUTHORITY, GUJRANAWALA and others Case No.: Writ Petition No,31986 of 2013Appeals Nos. 346/2103 and 1029/2103 Date of Judgment:2013-12-31 Reported As: 2014 C.L.R. 167, PLD 2014 Lahore 221 Result: Petition allowed
JUDGMENT
JUDGMENT SYED MANSOOR ALI SHAH, J.--- "Liberty of the ancients consisted of sharing of a nations sovereign authority among that nations citizens. This sharing of sovereign authority enlarged the citizens minds, ennobled their intellectual thoughts and established among them a kind of intellectual equality which forms the glory and the power of a people." Protesting against delimitation of constituencies and alleging gerrymandering, residents of the newly drawn. Union Councils and Wards have invoked the constitutional jurisdiction of this Court to seek "political justice." 2. The petitioners have assailed the constitutionality and legality of the law and process of "delimitation" of Union Councils and Municipal Committees into Wards, in the Province of Punjab by the Provincial Government, at the exclusion of the Election Commission of Pakistan ("ECP"), under the Punjab Local Government Act, 2013 ("Act") for the purposes of Local Government Elections, 2014. In addition, the vires of the ouster clause under Section 10A of the Act has also been challenged. 3. More specifically, the vires of Sections 8 to 9 and Section 10A of the Act, Order of Delimitation Authority, Gujranwala Division dated 21-11-2013 and the consequent final Notification of Delimitation issued by Delimitation Officer, Gujrat dated 5-12-2013 under the Act read with Punjab Local Governments (Delimitation) Rules, 2013 ("Rules") have been challenged before us. 4. The instant petition came up for hearing before a learned single Judge of this Court, who on the question of jurisdiction to entertain the instant matter, expressed disagreement with the view of another learned single Judge of this Court and directed that the case be placed before the Hon`ble Acting Chief Justice for constitution of a larger bench in the light of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423). The disagreement over the jurisdiction of this Court was regarding the scope and extent of the ouster clause under section 10A of the Act. Relevant extracts of earlier order dated 13-12-2013 (first order) passed in Writ Petition No, 15033/2013 and order dated 20-12-2013 (second order) expressing disagreement by the learned single judge hearing this petition are as under: First Order. 5. Since the Election Commission of Pakistan has notified the election schedule... And the electors of each Union Council/Ward are called upon to elect their representatives of Local Government Institutions, as such after issuance of such notification the Delimitation Officers/Delimitation Authority have become functus officio in order to review or to correct any delimitation of any Union Council or Ward. This Court in Constitutional jurisdiction, thus also would not be in a position to direct such Authority or Officer to review or correct any delimitation process which has already attained finality on issuance of election schedule. No action thus is required to be taken in the writ petitions, the same are disposed of as such. 6. The office is directed not to entertain and fix any writ petition filed requiring any direction to the Delimitation Authority/Officer or seeking any review or correction in any delimitation of a Union Council or Ward which already attained finality as noted herein above. Second Order. 3. Respectfully this Bench does not subscribe to the view taken by my learned brother as the matters which are being heard by this Court are, inter alia, in relation to some transgression of law, non-exercise of jurisdiction or colorful exercise of jurisdiction by the Delimitation Officers/Authorities, therefore, the jurisdiction vested in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is being invoked to get the said illegalities rectified and a non obstante clause in a legislation will not come in the way of the High Court to entertain such a petition.... 5. Finally, I find force in the argument of learned counsel for the petitioner that the use of word "Court" does not include the High Court. Therefore, while amendment made under Section 10A of the Act ibid can remain on the statute subject to challenge on its being ultra vires of Constitution or rights of the parties, this Court has the jurisdiction to deal with such issues which may be brought to its notice under Article 199 of the Constitution. Reliance is placed on the case of Federation of Pakistan through Secretary Defence and others v. Abdul Basit (2012 SCMR 1229). 6. While considering the dictum laid down in the case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423) the matter is referred to the Hon`ble Acting Chief Justice for constitution of a Larger Bench.... 5. When the matter was put up before the Hon`ble Chief Justice, it transpired that two Division Benches of this Court had also expressed their views on the question in their brief orders dated 16-12-2013 and 19-12-2013 passed in I.C.A. No,346/2013 and I.C.A. No,1029/2013, respectively. In one case, the ICA was dismissed on the basis of the ouster clause while dismissal in the other appeal was on the ground that Election Schedule has been announced and any interference would "frustrate the election process." None of these orders explicitly dealt with the limitation on the exercise of the constitutional jurisdiction of this Court or directed the office of the Court not to entertain such like petitions for hearing. In this backdrop the Hon`ble Chief Justice vide administrative order dated 23-12-2013 thought it appropriate to refer all pending cases regarding delimitation of Union Councils and Wards to this Bench for adjudication. Scope of the case.1 2 3 4 5
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6. After examining the ouster clause under Section 10A of the Act, the Order of Delimitation Authority, the Notification issued by the Delimitation Officer, the brief facts of the case and the facts and the prayer made in connected Writ Petition No,33581/2013. we are of the view that constitutionality of the process of delimitation of constituencies conducted by the Government under Sections 8 to 10 of the Act read with Rules 3 to 8 of the Rules is thrown into sharp relief. Even otherwise, "..Judges of the Supreme Court and the High Courts are bound by their oath and duties to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects, save from all defects or harm and to stand firm in defence of its provisions against attack of any kind. " Therefore, without delving into the factual intricacies associated with delimitation of constituencies, we venture to address the following constitutional and legal questions that arise in this case: (i) Ouster Clause. (a) Whether the constitutional jurisdiction of this Court to judicially review the orders of the Delimitation Officer and Delimitation Authority, after the Election Schedule has been announced, stands ousted by a sub-constitutional provision I ,e, Section 10A of the Act? (b) Whether Section 10A of the Act also ousts the jurisdiction of the Election Commission of Pakistan from reviewing the correctness of the delimitation orders/notifications, when it enjoys the apex constitutional role and obligation to independently and neutrally hold, organize, conduct and make necessary arrangements for elections in the country in order to ensure that elections are conducted honestly, justly, fairly and corrupt practices are guarded against under Articles 140A(2), 218(3), 219(c) and 222 of the Constitution? (c) Whether the judicial branch (i,e,, administration) of this Court can be directed, through a judicial order, "not to entertain and fix any writ petition requiring any direction to the Delimitation Authority/Officer" in the light of the above ouster clause? (ii) Scope and meaning of "Election" under the Constitution. Whether the scope and meaning of "Election" needs to be drawn from the constitutional electoral role and obligation of Election Commission of Pakistan under the Constitution? Or in the limited sense of the word "election," contextualized within the narrow collage of the term "conduct of elections" under Article 218(3), the word "election" under Article 225 of the Constitution and the peculiar scope and the remedial texture of an Election Petition under The Representation of the People Act, 1976 ("ROPA") or the Act ? (iii) Whether "Delimitation" is " part of " "Election" under the Constitution? Whether "delimitation" of a constituency is an integral and pivotal part of "election" (or the electoral process) and falls exclusively under the constitutional rote and obligation of ECP to organize and make necessary arrangements (as opposed to conduct of elections) for holding elections? (iv) Whether Delimitation for Local Government Elections is the sole prerogative of Election Commission of Pakistan? -- Whether "delimitation" for the purposes of Local Government elections, post 18th Constitutional Amendment , is the sole prerogative of the Election Commission of Pakistan under the Constitution? (v) Provincial Legislature and the constitutional role of ECP. Whether Provincial Legislature under Article 140A(l) of the Constitution read with its residuary legislative powers could oust the role of ECP from the Act (i,e,, provincial law on Local Government System including the electoral law) after the insertion of Article 140A(2) of the Constitution? And whether harmonious reading of Article 140A(1) and Article 222 binds the provincial legislature to make electoral laws within the scope of electoral laws mentioned in Article 222? (vi) Meaning of "to hold elections". Whether to hold elections by ECP under Articles 140A(2) and 219(d) of the Constitution encompass organizing, conducting and making arrangements for elections as provided under Article 218(3) of the Constitution? (vii) Constitutionality of the relevant provisions of the Act and the Rules. Whether Sections 8, 9 and 10 of the Act and Rules 3 to 8 of the. Rules, authorizing the Provincial Government to carry out delimitation of the Union Councils and Municipal Committees into Wards for the purposes of Local Government Elections, abridge and curtail the constitutional role of ECP under Articles 140A(2), 218(3), 219(d) and 222 of the Constitution besides offending the principle of "political justice" and the concomitant constitutional rights under Articles 3, 4, 9, 14, 17, 19 and 25 of the Constitution? (viii) Constitutional directives by Election Commission of Pakistan. Whether after the 18th Constitutional amendment, Election Commission of Pakistan enjoys a constitutional mandate to proceed with the holding of the Local Government Elections (including delimitation of constituencies) by issuing constitutional directives/instructions under Article 218(3) of the Constitution and need not await any provincial legislation in this regard? 7. As the constitutionality of the Act came into question, notices were issued to both the Attorney General for Pakistan and the Advocate General, Punjab under Order XXVII-A CPC. Arguments. 8. It has been argued by the learned counsel for the petitioners that Section 10A of the Act cannot control or regulate the constitutional jurisdiction of this Court under Article 199, and therefore, the ouster clause, does not, in any manner abridge the constitutional jurisdiction of this Court to judicially review the order passed by the Delimitation Authority or the Delimitation Officer. Even otherwise, it is opposed to the constitutional guarantee of access to justice, which is jurisprudentially well grounded in Articles 4, 9 and 10A of the Constitution. They also argued that "delimitation" is a pivotal part of elections, as envisaged under the Constitution, and can only be carried out by the Election Commission of Pakistan, especially after Local Government Elections have morphed into constitutional elections from statutory elections, after 18th constitutional amendment. As a consequence, provisions of the Act, abridging the constitutional role of the Election Commission of Pakistan from carrying out delimitation of constituencies is unconstitutional, rendering the delimitation announced through the impugned Notification to be without lawful authority and of no legal effect. 9. Learned Additional Attorney General for Pakistan tendered appearance and at the outset frankly conceded that the constitutional jurisdiction of this Court under Article 199 of the Constitution cannot be ousted under Section 10A of the Act. He, however, added that as the Election Schedule has been announced, any interference by this Court at this stage would frustrate the elections. He submitted without any supporting jurisprudence or material that Election Commission of Pakistan, under the Constitution, has no role to play in the delimitation of the Union Councils or Municipal Committees into Wards for the purposes of elections to Local Government. 10. The learned Acting Advocate General, Punjab also conceded that the constitutional jurisdiction of this Court to judicially review governmental orders and actions is not curtailed by a sub-constitutional provision i,e, Section 10A of the Act. He, however, beseeched the Court not to interfere at this stage when the Election Schedule has been announced and the electorate is ready to go to polls. On the constitutionality of the Act regarding "delimitation" he submitted that it does not form part .Of the "elections" but is actually a step anterior to the elections. In response to a question from the Court, he admitted, that other than the unreported Short Order of the Division Bench in Pakistan Peoples Party Case , there is no clear authority from our jurisprudence that holds that "delimitation" falls outside the scope of the elections or the electoral system, when seen in the context of an all - embracing electoral role of Election Commission of Pakistan under the Constitution. He also put forth another argument that it is not within the competence of the Provincial Legislature to impose obligations (of carrying out delimitation) on a constitutional entity like the Election Commission of Pakistan. He referred to the following judgments: Evacuee Trust Property Board and others v. Ahmed and others (2004 SCMR 440), Evacuee Trust Property Board v. Mst. Zakia Begum and others (1992 SCMR 1313), Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others (PLD 2008 SC 313), Rana Aftab Ahmad Khan v. Muhammad Alma! And another (PLD 2010 SC 1066), Mrs. Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC 66), Nawabzada Ghazanfar Ali Gul v. Government of the Punjab through Secretary, Revenue Department, Board of6 7 8 9
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Revenue, Lahore and 3 others (1999 CLC 430), Khursheed Ahmed Junejo and others v. Government of Sindh and others (2005 MLD 1724), Surendrasinhaji Jorawarasinhji Jhala v. U.M. Bhatta, Chief Electoral Officer, Ahmedabad and others (AIR 1969 GUJARAT 292) and State of U.P. And others v. Pradhan Sangh Kshettra Samiti and others (AI R 1995 SC 1512). 11. Realizing that our electoral jurisprudence is not fully contextualized in the post 18th constitutional amendment landscape, we invited the following amici curiae to assist the Court: M/s. Muhammad Shahzad Shaukat, Salman Akram Raja, Babar Sattar, Nasar Ahmad and Saroop Ijaz, Advocates. Except M/s. Babar Sattar and Saroop Ejaz, Advocates, who filed their submissions in writing, the others appeared before the Court and made their submissions. 12. The view expressed by the amici curiae unanimously leaned in favour of the all-embracing electoral role of the Election Commission of Pakistan bringing under its constitutional ambit all stages of "election" broadly referenced in Article 222 of the Constitution. They submitted that the scope of the word elections can best be drawn from the constitutional role and obligation entrusted to the Election Commission of Pakistan ("ECP") under the Constitution. The constitutional electoral jurisdiction of ECP determines the length and breath of the term "election." They put in a qualification that the meaning of the word "election" as popularly acknowledged in our jurisprudence refers to a part of "election" which relates to polls and commences with the announcement of the Election Schedule and has been interpreted in the limited context of ROPA and Article 225 of the Constitution. They submitted that "delimitation" is the "groundswell" of elections and fell within the exclusive constitutional domain of ECP. After Local Government elections have been recognized as constitutional elections, the role of ECP fully extends to all the stages of the electoral system envisaged under the Act including preparation of electoral rolls and delimitation of constituencies as is the case with the other constitutional elections. The constitutional obligation of ECP to organize, conduct and make necessary arrangements for holding elections subsumes different stages of election as laid down under Article 222 of the Constitution. They submitted, with utmost respect, that the declaration given in Pakistan Peoples Party Case, regarding delimitation being anterior to election is not the correct view and does not find support from the case law relied upon in the cited case. The word "election" has to be defined in the context of Part VIII of the Constitution and went ahead to submit that preparation of electoral rolls, delimitation of constituencies down to filing of the nomination papers, polling and announcement of the election results form part of "election" for the purpose of defining the constitutional role of Election Commission of Pakistan. They also made submissions on the issue of delimitation in the context of democracy, political justice and constitutionalism, relying on international electoral jurisprudence. In addition, they placed reliance on: Muhammad Nazir Hakim v. Bukhtiar Said Muhammad and the Controlling Authority, Montgomery (PLD 1962 (W. P.) Lahore 421), Imran Khan and others v. Election Commission of Pakistan and others (2012 SCMR 448), Workers Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Imran Khan and others v. Election Commission of Pakistan and others (PLD 2013 SC 120) and Workers Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2013 SC 406). DECISION OF THE COURT. Ouster Clause and the Constitutional Court. 13. Section 10A of the Act states: 10A. Finality of delimitation.--A court, officer or authority, shall not review or correct any delimitation of a Union Council or ward after the notification of the election schedule. It is axiomatic and by now a judicial cliche, that sub-constitutional legislation cannot curtail or abridge the constitutional jurisdiction of this Court. Legislature, being the creature of the Constitution cannot take away the jurisdiction of a constitutional Court conferred by the Constitution. "Shortly stated, an ordinary statute or a sub-constitutional legislation is incapable of ousting, curtailing or limiting the constitutional jurisdiction of the Supreme Court or the High Courts and the words no court in an ouster clause in a statute do not, therefore, include the High Courts or the Supreme Court so far as their constitutional jurisdiction (e.g. Under Article 199 and Article 184 of the Constitution) is concerned." This well settled constitutional principle loudly resonates through our jurisprudence: Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632), Malik Muhammed Mukhtar, through Legal Heirs v. Province of Punjab through Deputy Commissioner (Collector) Bhawalpur and others (PLD 2005 Lah. 251), Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139), Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26). 13. In a more common law context, it is a judicial norm, that courts jealously guard their jurisdiction. They start with a strong presumption against ouster of jurisdiction and construe the same strictly, which means "that if such a provision is reasonably capable of having two meanings, that meaning ... Which preserves the ordinary jurisdiction of the court" is preferred. "An ouster clause, however widely worded and whether it occurs in a Constitution or in an ordinary statute, does not save an act or order without jurisdiction (which expression compendiously describes and includes acts and orders coram non judice and mala fide) from scrutiny of the courts because the purported act or order is no act or order at all. " 15. Even sub-constitutional courts do not, with ease, abdicate or surrender their jurisdiction to exercise judicial power if the court is of the view that the order under challenge is illegal and outside the four corners of the law and no other alternate or special remedy has been prescribed by law. In this context it is useful to refer to the speech of Lord Reid in Anisminic: "The next argument was that, by reason of the provisions of S.4(4) of the Act of 1950, the courts are precluded from considering whether the commissions determination was a nullity, and, therefore, it must be treated as valid whether or not enquiry would disclose that it was a nullity. Section 4 (4) is in these terms: "The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law." But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that "determination" means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if one seeks to show that a determination is a nullity, one is not questioning the purported determination-one is maintaining that it does not exist as a determination. It is one thing to question a determination which does exist; it is quite another thing to say that there is nothing to be questioned. Let me illustrate the matter by supposing a single case. A statute provides that a certain order may be made by a person who holds a specified qualification or appointment, and it contains a provision, similar to S.4(4), that such an order made by such a. Person shall not be called in question in any court of law, A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment. Does such a provision require the court to treat that order as a valid order? It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly-meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court. Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any enquiry even whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word "determination" as including everything which purports to be a determination but which is in fact no determination at all." Lord Diplock said in A-G. v. Ryan:.10 11 12 13 14 15
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"It is by now well-established law that to come within the prohibition of appeal or review by an ouster clause of this type, the decision must be one which the decision-making authority, under this Act the Minister, had jurisdiction to make. If in purporting to make it he has gone outside his jurisdiction, it is ultra vires and is not a "decision" under the Act. The Supreme Court, in the…
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