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Petitioner: Tariq Iqbal VS Respondent: Election Commission of Pakistan and others
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Tariq Iqbal vs Election Commission of Pakistan and others Case No.: Writ Petition No.20507 of 2022 Date of Judgment:2022-04-28 Reported As: 2022 LHC 3649 Result: Petition Allowed
JUDGMENT
JUDGMENT JAWAD HASSAN, J. This judgment will decide this petition alongwith connected petitions, list of which is attached as Annex-A, where interpretation of the basic provisions of the Election Act, 2017 (the "Act" ) and the Elections Rules, 2017 (the "Rules" ) along with the relevant provisions which deal with the local government elections have been sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution" ). 2. There are various petitions filed before this Court requiring determination of the constituencies on delimitation conducted by the Election Commission of Pakistan (the "ECP" ) through the Delimitation Committee (the "Committee" ) and Delimitation Authority (the "Authority" ). The common point in all the petitions is that against the decision of the Committee and the Authority , no remedy is further provided to the Petitioners. I. BRIEF BACKGROUND 3. The Petitioners have approached this Court against the decision of the Committee and the Authority regarding delimitation of constituencies. The version of the Petitioners is that the election process was started under the Act and the Rules but the Authority , while deciding their objections, did not consider the principles of constituency as given under Chapter 3 read with Sections 17 to 20 of the Act. It is claimed by the Petitioners that the entire mechanism provided under the Act and the Rules has not been followed with regard to delimitation of their constituencies falling under the local governments as per Chapter XIII, Section 219 to 223 of the Act. The basic point raised by all the Petitioners, is that whole exercise was done without affording an opportunity to file any appeal against the decision of the Authority and as such there is no forum available except filing of these constitutional petitions. It is to be noted that the Court will only deal with the issue regarding election of local government where the Petitioners have no alternate remedy available to them under the Act and the Rules against the decision of the Authority and will not look into the provisions of the Punjab Local Government Ordinance, 2021
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and the Rules framed thereunder as that matter is already pending before the Special Bench constituted to deal with it. II. PETITIONERS ARGUMENTS i. Arguments of Mr . Mubeen ud Din Qazi, ASC 4. Learned counsel for the Petitioners states that the issue in this case relates to delimitation of the local government and the authorities prescribed under the provisions of the Constitutio n therefore, their case squarely attracts the Preamble of the Constitution which clearly stated that the State shall exercise its powers and authority through chosen representatives of the people and the principles of democracy shall be fully observed. He stated that wording used in the preamble has to be read with Article 17 of the Constitution which includes the local government and other authorities in Pakistan. He further stated that the issue in hand relates to Article 17 read with Articles 32, 33 and 218(3) of the Constit ution. He further stated that under Article 17 of the Constitution, right to freedom of association was provided and under Section 37(i) of the Constitution, the State shall decentralise the Government administration so as to facilitate expeditious disposal of its busines s to meet the convenience and requirements of the public. He has also referred to Article 32 of the Constitution which deals with the promotions of local government institutions. Lastly , he has referred to Article 140A of the Constitution by stating that the ECP is responsible to conduct elections of the representatives of the local governments. ii. Arguments of Syed T assadaq Mustafa Naqvi, Advocate 5. States that there is no alternate reme dy available to the Petitioners because the objections decided by the Authority are not in accordance with the principles of delimitation as provided under Chapter 3, Section 20 of the Act. iii. Mian Muhammad Ismail Thaheem, Advocate 6. States that the objections decided by the Authority do not mentions solid reasons under Section 22 of the Act and the matter needs to be remanded to the ECP for its decision afresh. iv. Malik Hafiz Muhammad Arshad, Advocate 7. He argued that discriminatory treatme nt has been meted out with the Petitioner by the Authority as objections with regard to adjustment of Block raised by other person of same vicinity have been accepted while that of Petitioner has been refused as such it is clear violation of Article 25 of the Constitution. III. RESPONDENTS ARGUMENTS 8. Barrister Ahmed Pervaiz, ASC objected to maintainability of the petitions on the ground that the decision passed by the Authority involves disputed questions of facts and that too, the Petitioners have no locus standi to file this petition. 9. Ch. Umer Hayat, Director Legal, ECP objected qua maintainability of the petition by stating that the Petitioners have been dealt with the procedure provided under Section 223 of the Act which deals with the objections to be dealt with by the Authority . MOOT POINTS 10. From the arguments advanced by the parties, the following moot points have arisen. I. Whether the constitutional jurisdiction of this Court to judicially review the orders of the Delimitation Officer and Delimitation Authority is barred? II. Whether the objections raised before the Authority against the decision of the Committee regarding delimitation of constituencies of local bodies were decided as per law? III. Whether the ECP can review the correctness of the delimitation orders/notifications, if non-availability of other remedy provided under the Act? It is to be noted that whenever important constitutional moot points are raised in a constitutional petition, the Courts always framed moot points in order to settle them strictly under Article 201 of the Constitution. This Court, has recently discussed in details regarding framing of moot points and settling them in "MUHAMMAD UMAIS Versus RAWALPINDI CANT ONMENT BOARD etc" ( PLD 2022 Lahore 148 ) by holding that "After framing of issues on constitutional moot points, this Court has narrowed down the law points and determined the fundamental rights of the Petitioner but while rendering judgment, the constitutional petition filed under Article
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199 of the Constitution, if the writ petition is admitted for regular hearing, and after perusing the record from the report and parawise comments, the Court has to render a decision strictly as per Articles 199 and 201 of the Constitution. The decision or order could be a judgment or an order passed on the constitutional petition filed under Article 199 of the Constitution but those decisions are made under the established law of precedent under Article 201 of the Constitution, to have a bindin g effect and its principles have to be followed later. Article 201 of the Constitution states that a decision of High Court if (i) it decides a question of law or is (ii) based upon or (iii) enunciates a principle of law be binding on subordinate Courts. In this case, writ petition was filed on 21.04.2021 and after hearing the parties on 28.04.2021, the Court while admitting the writ petition directed the parties to file written statement. Thereafter , written statement was filed by the Respondents and perused by this Court, hence, before proceedings further , the Court framed moot points in order to render a judgment under Article 201 of the Constitution. It is a settled norm that the decision on a question of law can only be made if question of law is framed and highlighted from the pleadings. In this case the Court on 02.06.2021 framed the constitutional moot points, mentioned above, in order to render a judgment, while keeping in mind the principles of law already established by the Superior Court, relied by both the counsel for the parties, then passed its decision on it to be called a decision or a judgment. Accordingly , the judgment then passed will consists of ratio decidendi, facts, arguments of the parties, moot points involved, and stare decisis and obiter dicta. The Constitution clearly empowers the Courts in Pakistan to render on these parameters regarding the question of law or based on question enunciated a principle of law. As every judgment of the Supreme Court is binding on all Courts under Article 189 of the Constitution, the same words are used in Article 201 of the Constitution but subject to Article 189 to follow its principle for consistency". MOOT POINT NO.1 I. Whether the constitutional jurisdiction of this Court to judicially review the orders of the Delimitation Officer and Delimitation Authority is barred? 11. Mr. Mubeen ud Din Qazi, ASC argues that the point involve in this case can be interfered with by this Court as it has jurisdiction to judicially review the orders passed by the Authority . On the other hand, Barrister Ahmed Pervaiz, ASC stated that the Petitioners have been dealt with by the Authority as per procedure provided under the Act. It is a settled judicial norm with strong principles of the Supreme Court in a chain of judgments that Courts jealously guard their jurisdiction. The 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 alterna te or special remedy has been prescribed by law. There would be no decision within the meaning of the statute if there were anything done contrary to the essence of justice. Reliance is placed on "BEGUM SYEDA AZRA MASOOD VERSUS BEGUM NOSHABA MOEEN AND OTHERS" (2007 SCMR 914), "YOUSAF ALI VERSUS MUHAMMAD ASLAM ZIA And 2 Others" (PLD 1958 SC 104). The superior courts have assumed jurisdiction if the order impugned is without jurisdiction, coram-non-judice or mala fide. A chain of judicial pronouncements reiterate this view: THE STATE VERSUS ZIA-UR-REHMAN AND OTHERS (PLD 1973 SC 49), MR. FAZLUL QUADER CHOWDHR Y AND OTHERS VERSUS MR. MUHAMMAD ABDUL HAQUE (PLD 1963 SC 486), THE FEDERA TION OF PAKIST AN THROUGH THE SECRET ARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKIST AN RAWALPINDI VERSUS SAEED AHMAD KHAN AND OTHERS (PLD 1974 SC 151), FEDERA TION OF PAKIST AN AND ANOTHER VERSUS MALIK GHULAM MUST AFA KHAR (PLD 1989 SC 26), PIR SABIR SHAH VERSUS FEDERA TION OF PAKIST AN AND OTHERS (PLD 1994 SC 738), MUNIR HUSSAIN BHA TTI, ADVOCA TE AND OTHERS VERSUS FEDERA TION OF PAKIST AN AND ANOTHER (PLD 2011 SC 407). In view of aforementioned judicial pronouncements, the constitutional jurisdiction of this Court to judicially review the orders, notifications and the acts of the executive i.e. the Delimitation Authority and Delimitation Committee in this case is not barred. MOOT POINT NO.2 II. Whether the objections raised before the Authority against the decision of the Committee regarding delimitation of constituencies of local bodies were decided as per law?
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12. Syed Tassadaq Mustafa Naqvi and Syed Tassadaq Murtaza Naqvi, Advocate s argue that the Petitioners are remediless as their objections before the Authority were not dealt with as per law and principles provided under Section 20 of the Act. In response, Barrister Ahmed Pervaiz, ASC stated that the Authority has decided the objection as per law. Before deciding this moot point, it is expedient to understand the importance of delimitation in democracy . Democracy is a rich and complex normative concept. It rests on two bases. The first is the sovereignty of the people. This sovereignty is exercised in free elections, held on a regular basis, in which the people choose their representatives, who in turn represent their views. The growing electoral jurisprudence shows that the right to vote actually translates into a more potent and substantial right to equal voting power . The electoral process other than ensuring fair and free polls, is to ensure that the weight of the vote of a citizen is not diluted or discriminated prior to the polls during delimitation of constituencies. This Court in "JAMSHED IQBAL CHEEMA Versus ELECTION APPELLA TE TRIBUNAL etc" (2022 CLC 463) has already elaborated the principles of democracy with reference to preamble of the Constitution by holding as under: "As the preamble of the Constitution specifically states that (i) principles of democracy shall be fully observed, (ii) dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny (iii) the State shall exercise its powers and authority through the chosen representatives of the people. While examining the relevant provisions of Section 60 and 62 of the Act, principles enunciated by the Hon'ble Supreme Court of Pakistan has been followed which are binding on this Court under Article 189 of the Constitution. The preamble of the Election Act, 2017 read with Election Rules, 2017, clearly state that an Act to amend, consolidate and unify laws relating to the conduct of elections". Legal Pathology of Delimitation 13. It is settled principle that delimitation is a vital and indispensable milestone in the electoral process as it defines and fashions the strength and weight of a vote. Fair and transparent delimitation of constituencies is pivotal for holding honest, fair and just elections. The central focus of any fair and just electo ral system is to ensure that the right to vote is properly guarded against the scourge of vote dilution or discrimination during the process of delimitation. Any electoral system must, therefore, be designed to protect the right to vote. Any step or stage in the process which has a bearing on the right to vote is an indispensable part of electoral process. 14. Under the settled jurisprudence developed by the Hon'ble Supreme Court of Pakistan, it is unequivocal that delimitation, means the demarcation of the boundaries of an electoral constituency in order to ensure fair, just and proportional representation of the people in the elections. The basic object of delimitation is to secure, so far as practicable, equal representation for equal segments of the population in legislat ive bodies. This is usually done with regard to stated constraints of administrative convenience, contiguity , geographical, and communication factors; and unstated influences of party-political advantage. The Principles of delimitation include having regard to distribution of population in geographically compact areas, existing boundaries of administrative units, facilities of communication and public convenience and other cogent factors to ensure homogeneity in the creation of constituencies. The other equally important aim of delimitation is to divide the geographic areas into territorial constituencies so fairly that no party or candidate may legitimately have a grievance that there has been "gerrymandering" of constituencies in favour of or against the interests of any particular party or candidate. Suggesting that the right to cast a ballot is meaningless if that ballot is undervalu ed relative to a ballot cast by a voter in a less populated district. Gerrymandering is "drawing of district boundaries so as to favour one's own chances in future elections. The strategies for gerrymandering have been characterized as 'stacking', 'packing', and 'cracking', each of which seeks to minimize the influence of those likely to vote for opponents". The process of delimitation has to ensure that the voting equality is not disturbed and the vote of one citizen must in no manner be less than the vote of another citizen. Other than population parity , geographical compactness, the homogeneity of interest of the community need to be factored in setting the parameters of delimitation. Reliance placed on "ARSHAD MEHMOOD Versus COMMIS SIONER/DELIMIT ATION AUTHORITY , GUJRANA WALA And Others" (PLD 2014 Lahore 221 ). Legal Anatomy of Delimitation
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15. By examining the relevant provisions of the Act, Rules it is very clear that delimitation is not a mere drawing of boundaries with a stroke of pen. It is a judicious exercise of delineating electoral areas, vigilantly guarding against any possible fear of vote dilution, disenfranchisement or corrupt practices. Unfair or partisan delineation can lead to skewed results, tarnishing electoral integrity . The foundations or the rules of the game for a fair and just election are laid down at the time of delimitation of the constituencies. The delimitation must be a neutral exercise, conducted by a neutral body . Any partisan political intervention and drawing up of political constituencies under the dictates of the political party in power is bound to lead to gerrymandering and unjust political windfall, tarnishing the sanctity of elections and crippling the faith of an ordinary man in the system of democracy . 16. The heart of controversy involved in the instant cases is whether the Comm ittee has rightfully delimited the constituencies as per the Act and the Rules and whether the objections raised against the decision of the Committee before the Authority were decided as per law . 17. In order to ensure free, fair and transparent elections as well as to guard against the corrupt and illegal practices, it is the duty of ECP to ensure that the delimitation is carried out strictly in accordance with the mandatory principles provided under section 10 and 11 of the Punjab Local Government Ordinance 2021 read with rule 4 of the Punjab Local Government (Delimitation of Neighborhood Councils and Village Councils) Rules 2022; Section 221 read with Section 20 of the Election Act 2017; Rule 17 of the Election Rules 2017; and read with Article 222(b) of the Constitution of Pakistan, 1973 i.e., territorial unity, facilities of communication and public convenience and other cognate factors to ensu re homogeneity in the creation of constituencies, uniformity of population/distribution of population in geographically compact areas, physical features, existing boundaries of administrative units. 18. The case of the Petitioners is that their objections were not dealt with properly and while passing the impugned orders/notifications, the Delimitation Committee as well as the Delimitation Authority neither conducted any independent enquiry or carried out any field visit, nor the relevant record was examined or evidence recorded, as required under the Act and the Rules made thereunder . Hence failed to exercise the power and authority vested in them under the law, rendering the whole exercise of final delimitation as well as the impugned order/ notifications, as null and void. Rule 21 of the Rules is of much importance which gives procedure of filing objections before the Authority . The Court has noticed that the order passed by the Authority was not in terms of parameters as set under Rule 21(2) and (4) of the Rules. The Rule 21(3) clearly envisages that the Authori ty has to decide objections after holding inquiries, summoning witnesses and recording of evidence. This Rule has to be read with Section 223(3) of the Act. Perusal of Section 223(3) with Rule 21(3) of the Rules makes it quite clear that the Authority has to decide the objections within thirty days after holding inquiries, summoning witnesses and recording of evidence. Although the Authority decided the objections but they are not in accordance with the Rule ibid. No justification or reasoning has been mentioned in the impugned order of Delimitation Authority . It is not a speaking order rather based on evasive grounds. It was incumbent upon the Authority to decide the objections of each objector separately on its own merits, but to its dismay it decided multifarious objections raised by petitioners evasively in a single order . Such an order is not sustainable under the law. The impugned order as well as the proceedings are also a gross violation of section 24-A of the General Clauses Act, 1897 which manifestly impresses upon the Authorities/public functionaries to decide the cases after application of mind on the touchstone of reasonableness, which otherwise is lacking in the instant case. The Delimitation Authority while conducting the impugned delimitation, have failed to act reasonably , fairly and justly as required under section 24-A of General Clauses Act. Reliance is placed on FASIH- UD-DIN KHAN VERSUS GOVERNME NT OF PUNJAB (2010 SCMR 1778 ), CHAIRMAN, STATE LIFE INSURANCE CORPORA TION VERSUS HAMA YUN IRFAN (2010 SCMR 1495 ) & UNITED WOOLLEN MILLS LTD. WORKERS' UNION VERSUS UNITED WOOLLEN MILLS L TD (2010 SCMR 1475 ). MOOT POINT NO.3 III. Whether the ECP can review the correctness of the delimitation orders/notifications, if non-availability of other remedy provided under the Act? 19. Mr. Mubeen Uddin Qazi, ASC and Sardar Akbar Ali Dogar Advocates argued at length and stated that the Petitioners are remediless against the decision of the Authority , hence they have brought this petition before this
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Court with the stance that despite passing of orders by the Authority , the ECP, being regulator of the elections process, still have power of review of its order . This stance has strongly been controverted by Barrister Ahmed Pervaiz, ASC/Legal Advisor of ECP on the ground that the Petitioners have been dealt by the Authority made under the law hence there was no scope of review of order passed by the Authority . This point has to be examined by this Court in the light of relevant provisions of the Act and the Rules. The issue raised in these petitions is that no forum is provided under the Act after decision of objections of the Petitioners by the Authority . As the matter relates to delimitation of constituencies of local government therefore Court will examine the remedy of the Petitioners against the decision of the Authority under the Act, Rules and the Constitution. 20. The preamble of the Constitution states that the principles of democracy shall be fully observed and the State shall exercise its powers and authority through the chosen representatives of the people. The local government and its elections by the ECP have been provided under Article 140-A of the Cons titution which specifically states that each province, by law, establish a local government system and election of local government shall be held by the ECP. Since the issue in hand relates to delimitation of local government and this important aspect has to be seen with Article 4 of the Constitution. According to this Article, it is an inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law (the Act and the Rules) and no action detrimental to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law. Article 32 of the Constitution envisages that the State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women. The word 'elected representatives of the area concerned includes the representatives who are before this Court on the issue of delimitation of their constituencies. Article 37(i) of the Constitution demonstrates that the State shall decentralise the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public. Article 222 of the Constitution provides for nature and scope of electoral laws and the Act and the Rules were made by the Provincial Assembly however , a close reading of Article 222(b) would indicate that it does not relate to delimitation of constituencies of National and Provincial Assemblies alone rather it is open-ended and construed harmoniously with the other relevant provisions of the Constitution, would include the making of appropria te laws by the Parliament for delimitation of constituencies for the local governments. Article 222(c) clearly gives an option that the preparation of electoral laws and determination of objections pertaining to electoral roles. The words 'objections pertaining to electoral laws' used under the referred Article give relevancy to the objections made by the voter against the decision of Committee and the Authority . The Court is convinced of the fact that it is the Commission who prepared electoral roles under Article 219(a) of the Constitution which includes the electoral roles of local government to hold general elections. In order to hold general elections and to prepare electoral roles, the onus is on the Commission to provide an opportunity to deal…
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