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Petitioner: Province Of Sindh Through Chief Secretary And Two, Other VS Respondent: MQM through JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Sh. Azmat Saeed, Tasaddaq Hussain Jillani Title:Province Of Sindh Through Chief Secretary And Two, Other vs MQM through
JUDGMENT
Reported As: K.L.R. 2014 Supreme Court 107, 2014 PSC 1298 Result: Civil Appeal/Petition dismissed. Judgment JUDGMENT TASSADUQ HUSSAIN JILLANI, CJ.--- This judgment shall dispose of Civil Appeal Nos. 38 to 45 of 2014 and Civil Petition Nos. 26-K to 34-K, 163 & 164 of 2014 as all of them are directed against the same impugned judgment of the High Court of Sindh, Karachi dated 26.12.2013 whereby the Court allowed the Constitution petitions of the respondents, annulled the delimitation exercise carried out by the Delimitation Officers in the Province of Sindh under the Sindh Local Government Act, 2013 and declared the amendments made in the said Act as ultra vires of the Constitution in terms as follows:--- "60(e) The amendments made through Sections 3, 4 and 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 (which is now passed by the Sindh Assembly) whereby a proviso has been added in sub-section (1) of Section 13, sub-section (12) & (14) have been added in Section 18 and substitution made in Schedule-I, in Part-C under the head "Union Committee in Metropolitan Corporation" for the figures "40,000-50,000" to the figures "10,000 to 50,000" in Sindh Local Government Act, 2013 are violative of Sections 12, 13, 34, 35, 36 and 153-A of the Sindh Local Government Act, 2013 and also opposed to the Articles 17, 25, 140A, 218 and 219 of the Constitution which are struck down accordingly. " 2. Learned counsel for the appellant Mr. Farooq H. Naik, ASC made following submissions:--- (i) in terms of Article 140A of the Constitution of Islamic Republic of Pakistan, elections to the local
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governments are to be conducted by the Election Commission of Pakistan; that as provided under Article 219(d) which relates to the duties of the Commission, the holding of general elections to the National Assembly, Provincial Assemblies and Local Governments is the duty of the Election Commission; that Article 222(b) inter alia mandates that Majlis-eShoora (Parliament) may by law provide for delimitation of constituencies but, "subject to the Constitution"; (ii) the question of delimitation is anterior to the elections; that no law has been enacted by the Majlis-e-Shoora/Parliament in terms of Article 222(b) for delimitation of constituencies of the local councils whereas it has enacted the Delimitation of Constituencies Act, 1974 only with regard to delimitation of constituencies of National and Provincial Assemblies. Refers to Fourth Schedule, Part-I wherein the Federal Legislative List has been provided, Item No. 41 of which relates to the election to the office of President, to the National Assembly, the Senate and the Provincial Assemblies, Chief Election Commissioner and Election Commissions but no reference has been made with regard to the election of local councils. Thus Election Commission of Pakistan has no power to carry out delimitation of the constituencies of local bodies; that in terms of Article 142(a) and (d) of the Constitution, the distribution of the legislative powers has been spelt out and enacting laws with regard to the elections of local bodies is not included in the legislative powers and the concurrent legislative list as provided in terms of Article 142(b) is "to make laws with respect to criminal law, criminal procedure and evidence"; (i.e) in Sindh till date no rules have been framed for delimitation of constituencies of local bodies and only guidelines have been issued; that the Sections relatable to delimitation in the Sindh Local Government Act, 2013 are Sections 38, 10 and 11 and the expression "prescribed manner" appearing in Section 11 has been defined in Section 3, item 52. 3. Learned counsel for the appellant requested for a day's time to respond to the query as to whether Rule 8 of the Sindh Local Council (Election) Rules, 2013 is in accord with Section 11 of the Sindh Local Government Act, 2013 or not? Learned counsel for the appellants submitted that for delimiting the constituencies the law itself has laid down guidelines. In this connection he referred to Sections 10, 11 & 12 and in particular the expression used in all these three sections "as far as possible" which is indicative of the fact that the legislature kept in view the ground realities as well. He added that the powers of District Delimitation Officers were conferred on the Deputy Commissioners and the Commissioners were made the Appellate Authorities; that 1089 appeals were filed before the Commissioners and all of them were disposed of and in none of those appeals there was any allegation of male fide against the Delimitation Officers. He added that although the population criteria was the census carried out in 1998 but the fact remains that lot of new voters had been registered since then and they could not be disenfranchised. That is why the Election Commission has been revising the Electoral Rolls from time to time. He pointed out that during the delimitation process the instructions of the Election Commission inter alia to keep the census blocks intact was complied with and it was strictly in the light of the said direction of the Election Commission of Pakistan that initially the pilot project was launched in Malir city, Karachi and finding that the same was successful, the delimitation proposals for the Province of Sindh were finalized. 4. He relied on Muhammad Abdus Salam vs. Chairman, East Pakistan Election Authority and others (PLD 1965 Dacca 231 at page 235) to contend that the expression 'as far as possible' which is similar to the expression 'as far as practicable' or 'having regard to territorial unity' appearing in Section 6 of the Electoral College Act, 1964 was a subject of judicial review before the High Court of Dacca
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and it was held as follows:--- "Further requirement, however, is that delimitation shall be effected "having regard to territorial unity". The expression "having regard to" means bearing in mind or taking into consideration. Therefore, the requirement is to bear in mind the question of territorial unity. Even if it can be said that there is a command, it consists in taking into consideration the question of territorial unity. It is nowhere provided that the territorial unity shall be maintained in all circumstances. No such assurance can be read in the said provision. Territorial unity has indeed been made a basic consideration but it is not an absolute requirement of law. In order to succeed in these petitions it is to be established that delimitation has been effected in a manner contrary to a mandatory provision of the statute. It is claimed in these two petitions that the territorial unity has been violated. It has neither been urged nor can it be found on the materials before us that the question of territorial unity has not been considered at all. It is true that consideration means fair and reasonable approach to the question. It requires faithful and true application of mind to the direction of the Legislature. It must be done bona fide, and not in fanciful and haphazard manner. But, it is indeed difficult to hold that the question of territorial unity was not made the basis of consideration in the determination of the units in these two cases specially in view of the assertions made in the affidavits-in-opposition as quoted above. " 5. Dilating on the power of the High Court under Article 199 of the Constitution, it was argued that the learned High Court could not go into the vires of the delimitation process as it entailed factual inquiry which exercise could not be undertaken in Constitutional jurisdiction. He added that on the completion of delimitation exercise it emerged that various councils had discrepancies in terms of population criteria, which was impossible to match with the prescribed figures without breaking the census blocks. It was on account of this practical difficulty that through the 3rd Amendment in the Sindh Local Government Act, 2013 in Schedule I, Part-B clause (b) was amended. He read out para 34 of the impugned judgment to highlight the argument of learned Advocate General Sindh in this regard. The Third Amendment was brought keeping in view the ground realities of the population discrepancies and census blocks which is evident from page 197 of the petition (CA 38/2014). Learned counsel contended that the direction of the learned High Court in para 60(b) to the effect that the elections be conducted on the basis of delimitation a existed prior to 2013 would not bring a major change so far as the population discrepancy between various constituencies is concerned and if in 2001 it was not gerrymandering, almost the same discrepancy could not be classified and struck down as gerrymandering. He added that the delimitation exercise was being conducted under the orders of this Court and the same has been set at naught vide the impugned judgment. Learned counsel further contended that the Constitution of Islamic Republic of Pakistan envisages a representative democracy wherein as per the Preamble sovereignty lies with ALLAH Almighty but it has to be exercised through chosen representatives. The concept of representative democracy is reiterated in Article 32 of the Constitution but numerical equality of population between the various constituencies is not a condition precedent for representative democracy. In support of the submissions made, learned counsel relied on two judgments i.e. McGinty and others Vs. State of Western Australia (1996) 1 LRC 599 & Regina Vs. Boundary Commission for England (1983) 2 WLR 458. 6. Dilating on the panel system in the local government elections on 2.11.2013 vide the Sindh Local Government (Amendment) Act, 2013, learned counsel submitted that the candidates of political parties and independent candidates both were required to join a panel to contest the elections. However, where single ward elections are to be contested such as in the Town Committees and
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Municipal Committees there is no requirement of elections as panel. He added that the multiple member union councils and union committees require a panel as each ballot would otherwise have multiple candidates contesting on the same symbol creating serious complications and confusion for the voters; that the ballot papers would also stretch to many pages and would significantly prolong the duration in which ballot papers are issued as well as during vote count. It is very likely that rejected votes in such a convoluted and chaotic exercise would exceed the number of valid votes; that this would cause a major problem for ECP as it would have to print approximately 11 crore ballot papers for non-panel election as compared to only 3 crore ballots for panel election as reported. Yet another consideration for panel election was that for the first time party based local government elections were being conducted, and it was deemed necessary that the panel system should be introduced as it would weaken sectarian, ethnic, baradri and such other prejudices which are tearing the society apart and that the panel system would weaken these prejudices and strengthen political parties which contest elections on issues. This would also discourage horse trading that is normally associated with independent candidates. With these legitimate motives and considerations and with a view to facilitate ECP, the panel system was introduced. 7. Addressing the Court on addition of a proviso to Section 13(1) of the Sindh Local Government Act, learned counsel argued that to enable the Delimitation Officer to overcome a practical difficulty when he comes to the conclusion that an area which was rural has a clear status of an urban area at the time of delimitation he may pass an order accordingly, so a proviso was added to Section 13(1) which has been struck down vide the impugned judgment as ultra vires. This argument according to him was not violative of any Constitutional provision. 8. Barrister Farogh Naseem, learned counsel for the respondent No. 1 (in Civil Appeal No. 38/2014) while defending the impugned judgment made following submissions:--- a. The principle of "one man one vote" is fully entrenched in our country in view of Articles 51(5) and 25 of the Constitution and Sections 7(1), 8(4) and 9(2) of the Delimitation of Constituencies Act, 1974; b. In view of the newly added Articles 140A, 219(d) read with Articles 7, 32 & 37(i) of the Constitution, the principle of "one man one vote" is fully applicable to the local government elections; c. As mandated by the Constitution and Sections 10(2)(b) of the Sindh Local Government Act, 2013 and Section 8(2)(c) of the Punjab Local Government Act, 2013, law provides for uniformity in population in Union Council; d. With a view to comply with this Constitutional mandate, Section 10(2)(b) of the Sindh Local Government Act, 2013 and Sections 8(2)(c) of the Punjab Local Government Act, 2013 have to be read down to ensure uniformity in population of Union Committees /Wards, failing which it would be violative of Article 25 of the Constitution; E. Indeed the population of the constituencies cannot be equated with each other with mathematical exactitude, a limited variation of 5% may be permitted. Maximum variation upto 10% may only be permitted if the government is able to give reasons as to why any fluctuation beyond + 5% has been provided in the' constituencies. Therefore, the delimitation carried out including the notification dated 21.11.2013 for Karachi (at page .158) in violation of the principle of 'one man one
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vote' subject to the above permitted variation, is void and against Articles 25 and 51(5) of the Constitution read with Sections 10(2)(b) of Sindh Local Government Act, 2013; f. The notification dated 12.11.2013 attempting to equate the delimitation process for Union Councils with Union Committees is void due to the disparity in the population criteria; g. There is no estoppel against the Constitution or statute. Therefore, if there has been any population disparity in previous local bodies' elections, it cannot justify the population disparity impugned before the High Court though it can be safely stated that the population disparity, if any, on previous occasions is no match to the one attempt this time; h. In essence, the exercise of delimitation is cumbersome and requires proper analysis, assessment and application of mind from many facts. This would also require the leading of evidence and the opportunity to examine, cross examine and re-examine witnesses. The so-called Delimitation Officers lacked any expertise in this regard. The appellants were not justified to carry out the exercise of delimitation in a manner which was premeditated, farcical and nothing but a smoke screen, violating the elementary principle of structuring the discretion. Also the very exercise of delimitation had been carried out without any statutory guidelines. As such the entire exercise of delimitation carried out in the Province of Sindh is unConstitutional and void; i. The High Court under Article 199 of the Constitution was fully empowered to correct any delimitation which had been carried out in violation of Constitutional law, law and the principles of law extracted through judicial decisions; j. The High Court under Article 199 of the Constitution was fully empowered to strike down any law or provisions therein, which violated the Constitution. The learned High Court was fully justified to have struck down the provisions pertaining to the mandatory requirement to contest elections of the local government through a panel system, the proviso to Section 13 of the Sindh Local Government Act and the amendment of the population criteria from 10,000 to 50,000 instead of 40,000 to 50,000 for Union Committees in Metropolitan Corporations as the same were arbitrary, illegal, discriminatory and constituted gerrymandering; and k. The exercise of delimitation is to be carried out by an independent body which presently under the Constitutional dispensation is the Election Commission of Pakistan. 9. In support of the submissions made, learned counsel relied on Nawaz Shard vs. President of Pakistan (PLD 1993 SC 473 at page 666 para 8 and page 646 placetum "F"), Elahi Cotton Ltd. Vs. Federation of Pakistan (PLD 1997 SC 582 at 676), Rauf Bakhsh Kadri vs. The State (2003 MLD SC 777), Excise & Taxation Officer, Karachi vs. Burmah Shell Storage and Distribution Company of Pakistan Ltd. (1993 SCMR 338), Association of Resident of Mhow (ROM) and Anr. Vs. The Delimitation Commission of India and others (AIR 2009 SC 3278 para 3), State of Madhya Pradesh and others vs. Devilal (AIR 1986 SC 434 at 440, para 15), Rameshchandra Ramanbhai Patel and another vs. Collector and others (1979) 1 GLR 191 paras 19, 20, 21, 23, 22 & para 60) and Surendrasinhaii Jorawarasinhji Jhala vs. U.M. Bhatta and others (AIR 1969 Gujrat 292). 10. He submitted that the Australian judgment on which reliance was placed by the Advocate General Punjab before the High Court was given in a certain context as the law provided for an electoral disparity (Electoral Act, 1907). This provision was unsuccessfully challenged but
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subsequently the said law was amended by the Electoral Amendment and Repeal Act, 2005; that in terms of Article 10A, the delimitation process has to be fair, transparent which it has been established before the High Court of Sindh, it was not and has rightly been set at naught. In support of this submission, learned counsel relied on Imran Khan vs. Election Commission of Pakistan (PLD 2013 SC 120), All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner & Others (AIR 2007 NOC 1801 (MAD) (FB), Gatron Industries Limited vs. Government of Pakistan (1999 SCMR 1072 at 1087), Ismail Vs. Sher Bano (1988 SCMR 772), Abdul Haque vs. Shoukat All (2003 SCMR 74). He added that the District Delimitation Officers were not provided with any guidelines while undertaking the process of delimitation and the discretion exercised by them besides being unstructured was arbitrary. Referring to Section 11(1) he mandates that the law provides that the "Government shall, in the prescribed manner, delimit wards in Municipal Committees, Town Committees and Corporations" and the expression 'prescribed' has been defined in Section 3 sub- section (i.e) as "prescribed by rules" but the Rules under the Sindh Local Government Act, 2013 were framed on a later date i.e. 27.11.2013 whereas the delimitation notification had already been issued on 21.11.2013; that a combined reading of Article 142 Item 41(Fourth Schedule) of the Federal Legislative List, Article 218(3) and Article 219(d) would indicate that the Constitution-makers mandated that the Election Commission of Pakistan would hold the election of the local government and the process of delimitation which is part of the election process had to be carried out by the Election Commission of Pakistan. He added that the term 'election' has to be defined and construed with reference to the context in which it has been used and the judgments from Pakistan jurisdiction wherein it has been held that the election process commences with the issuance of the election schedule would not be helpful in the instant case as the context is distinct; the question mooted before this Court is the process of delimitation. In support of the submission made, learned counsel relied on State of Gujarat v. Jamnadas G. Pabri and others (AIR 1974 SC 2233) and Muhammad Nazir Hakim vs. Bukhtiar Said Muhammad and the Controlling Authority, Montgomery (PLD 1962 Lahore 421). 11. Syed Mureed Ali Shah one of the respondent in Civil Appeal No. 39/2014 and petitioner in Civil Petition No. 163/2014 while defending the impugned judgment submitted that the delimitation process carried out by the Deputy Commissioners was the arbitrary, non-transparent and reflects total disregard to the principle of population parity and contiguity; that to give legal cover to the exercise of delimitation carried out by the Deputy Commissioners in Sindh, a proviso was added to Section 13(1) which reflects mala fides on the part of the appellant. He added that the notification dated 26.9.2013 appointing Divisional Commissioners as Election Tribunal to hear objections appeals against the delimitation proposals was flawed and suffered from illegalities as under:- (i) the notification dated 26.9.2013 was not issued with the prior approval of the competent authority and in conformity with Article 139 read with rules and regulations; (ii) the notification was issued without recital (no law mentioned); (iii) under Article 219(c) and Section 47 of the Act, the cabinet or the Chief Minister cannot appoint Election Tribunal? and (iv) the notification was never published in official Gazette as such, the notification never took effect right from its inception. 12. He added that the amendment made in the Sindh Local Government Act, 2013 through Sections
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3, 4 & 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 (which has now become Act) whereby a proviso has been added to sub-section (1) of Section 13, sub-section (12) & (14) have been added in Section 18 and substitution made in Schedule-I, in Part C under the head "Union Committee in Metropolitan Corporation" for the figures "40,000-50,000" to the figures "10,000 to 50,000" in Sindh Local Government Act, 2013 is violative of Sections 12, 13, 34, 35, 36 and 153-A of the Sindh Local Government Act, 2013 as also of the Constitution and has rightly been struck down by the learned High Court. 13. Learned Attorney General for Pakistan Mr. Salman Aslam Butt made following submissions:- a. The function of the Election Commission of Pakistan before the 18th Amendment was to conduct elections for National Assembly, Provincial Assembly, Senate and President etc but after the 17th and 18th Amendment, Article 218 & 219(a)(c) were amended and Article 140A was added and now it is one of the functions of the Election Commission to hold elections of the local government; b. The right to vote in local government elections is a statutory right; c. Unlike National and Provincial Assemblies' Members, the Members of the local councils enjoy powers which are administrative in nature over certain local area in a Province and, therefore, the power to delimit the constituencies has rightly been given to the Provincial Government. Referring to the Item 41 of the Federal Legislative List, Fourth Schedule, learned Attorney General contended that under the Constitutional mandate Majlis-e-Shoora has no power to enact laws ertaining to local council as this subject is not inbluded in the said subject and Article 142(c) specifically provides that "subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List": d. On the nature of the right to vote, he relied on Muhammad Nawaz vs. Moulvi Allah Bakhsh (PLD 1952 SC 64 at page 71), Kuldip Nayar v. Union of India (AIR 2006 SC 3127). 14. Mr. Makhdoom Ali Khan, learned amicus curiae submitted that there are two distinct sets of propositions in these cases i.e. (i), what are the powers of the Election Commission of Pakistan under the Constitution, and (ii) the specifics of the Sindh Local Government Act, 2013. He added that the proviso to sub-section (1) of Section 13 was added through Third Amendment (CMA No. 652 in CA 38/2014, Act is at page 2); that in the un-amended Section 13(1) there was provision of a prior notice and inviting objections from the people of the area before it could be declared to be urban or rural and adding a proviso to the effect that Delimitation Officer/Deputy Commissioner during the process of delimitation could declare any area to be rural or otherwise amounts to undoing of the sub-section (1) of Section 13 which is not tenable in law. He added that in certain situations/cases the doctrine of reading down can be invoked but there may be others where this cannot be; that the proviso added is devoid of any guideline and is a classic case of excessive delegation; that to confound the situation even the appeals filed against the orders of the Delimitation Officers exercised under the afore-referred provisions were disposed of by non- speaking orders. He added that the principle of severability can be applied but it has its limitations. First, the object of reading down is to save the statute. In doing so the paramount consideration would be that in the event of reading down would the statute remain functional. Second, would the legislature have enacted the law if that issue had been brought to its notice which is…
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