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Petitioner: Sardar SHER BAHADUR and 5 others VS Respondent: GOVERNMENT OF PAKISTAN through JUDGMENT
Court Name: Peshawar High Court Judge(s): Rooh-ul-Amin Khan, Lal Jan Khattak Title:Sardar SHER BAHADUR and 5 others vs GOVERNMENT OF PAKISTAN through
JUDGMENT
Reported As: 2018 CLC 1202 Result: Petitions dismissed Judgment JUDGMENT ROOH-UL-AMIN KHAN, J.---Through this common judgment, we propose to decide the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), filed by petitioners Sardar Sher Bahadar and others and connected Writ Petition No,3384-P/2015, filed by petitioners Maulana Asghar Ali and others, as in both the petitions, the tires of the Khyber Pakhtunkhwa Local Government (Third Amendment) Act, 2015, relating to disqualification of a Member of Political Party in a Council on the grounds of defection, are under attack. The impugned legislation i,e, section 78-A inserted in Khyber Pakhtunkhwa Local Government Act. 2013, (the Act) through the impugned legislation, read as under:- "78A. Disqualification on grounds defection:---(1) If a member of a party composed of a single political party in a Council:- (a) resigns from membership of his political party or joins another party in a Council; or (b) votes or abstains from voting in a Council contrary to any direction issued by the political party to which he is a member, in the Council, in relation to:- (i) Election of the Nazim or Naib Nazim is a Council; or (ii) A vote of confidence or a vote of no confidence; or (iii) Approval of annual budget,- He may be declared in writing by the Party Head to have defected from the Political party, and the Party Head may forward a copy of the declaration to the Presiding Officer of the concerned Council and the Chief Election Commissioner and shall similarly forward a copy thereof to the member concerned:
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Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show-cause as to why such declaration may not be made against him. Explanation: For the purpose of this section,- (i)"Council" means the Town Council, Tehsil Council or the District Council, as the case may be; (ii)"Party Head" means any person, by whatever name called or declared as such by the Party and included the nominee of the Party Head; and (iii)"Presiding Officer" means the Naib Nazim of the concerned Council. (2) A member of a Council shall be deemed to be a member of a Political party if he, having been elected as a candidate or nominee of a political party which constitutes the party in the concerned council or has become a member of such political party as per provision of clause (a) of subsection (7) of section 74 of this Act. (3) Upon receipt of the declaration under subsection (1), the concerned Presiding Officer, shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Chief Election Commissioner, who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner. (4) Where the Election Commission confirms the declaration, the member referred to in subsection (1) shall cease to be a member of the concerned Council and his seat shall become vacant. (5) Any party aggrieved by the decision of the Election Commission may, within thirty days, prefer an appeal to the High Court which shall decide the matter within sixty days from the date of filing of the appeal. (6) Nothing contained in this section shall apply to the Nazim or Naib Nazim of the Council, 2. The instant writ petition was filed in Abbottabad Bench while the connected writ petition in Bannu Bench of this Court, but due to pendency of other Elections Appeals at the principal seat, both the petitions were transferred to the principal seat. 3. Petitioners of the instant writ petition are the residents of District Abbottabad and were elected as Members of their respective Tehsil/District Councils, in the Local Government Elections, held on May 30th, 2015. According to them, at the time of their joining Political Party viz Tehreek-e-Insaf (PT!) and taking part in the election, the only law regulating the local Government election was the Khyber Pakhtunkhwa Local Government Act, 2013 wherein there was no clause of defection, however, subsequently, the Government of Khyber Pakhtunkhwa (KPK), in pursuance of Articles 37 and 140-A of the Constitution, enacted/introduced the law about disqualification on grounds of defection by inserting section 78-A in the midway on August 24th, 2015, i,e, after election held on May, 30th 2015. On casting of vote by the petitioners in the Council in favour of a candidate/District Nazim, contrary to their party candidate, they were given show-cause notices under the impugned law by the Head of their party (PTO, through its Provincial Organizer Khyber Pakhtunkhwa, and were resultantly, defected from the Party. 4. Petitioners in the connected writ petitions contested the Local Government Elections, held on 30th May, 2015 on the party ticket of JUI(F) and were elected as Members of District Council, Lakki Marwat. Upon casting of their votes to the candidate of District Nazim against the direction of their party head, they were also served with notices under the impugned legislation and ultimately defected from the party. 5. Petitioners of both the writ petitions seek issuance of appropriate writ in the following manner:- "To declare the whole of Khyber Pakhtunkhwa Local Government (Third Amendment) Act, 2015, as illegal, ultra vires, void ab initio, unlawful and without lawful authority as the same is fiat and is in opposition to the indispensable principle of freedom of speech and expression as well as the Constitution of Islamic Republic of Pakistan, 1973". To declare section 78-A of the Act, as inapplicable and inoperative retrospectively.
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To declare the declaration of defection of the petitioner. issued in pursuance of impugned amendment, as illegal, null. and void. 6. Qazi Muhammad Anwar, Advocate, learned counsel for the petitioners in the connected writ petition, after arguing the case at some length, not only conceded the legislative powers of the Provincial Government under Articles 37 and 140-A of the Constitution to legislate/enact laws for the Province, but also conceded the provision of the impugned law i,e, 78-A of the Act, to be intra vires, however, he strongly opposed its retrospective applicability on the ground that the impugned legislation has been introduced on August 24th, 2015 i,e, after the Local Government election held on May 30th, 2015; that since the Local Government Election was contested by the petitioners under the rules and regulations enshrined in the Act of 2013, when the impugned law was not on the statute book, hence, its retrospective applicability on the petitioners would be against the nature of law, equity and justice. 7. Learned counsel for petitioners in the instant writ petition not only objected the retrospective effect of the impugned legislation, but also criticized the impugned law to be ultra vires being against the fundamental rights enshrined in Articles 8 to 28 and 17(2) of the Constitution. He contended that the impugned law not only imposes embargo on the right of the citizen to vote according to their whims and wishes to freely elect their leader, but also does not provide any right of personal hearing or proper procedure and remedy of defence to the disqualifying Member which is against the natural justice and principle of audi alteram partem, which is jealously and vigorously followed by the Courts of the Country; that right to vote on the direction of the Head of the Party is against the fundamental rights, political norms and democratic values of the country which pave the way for the dictatorship of political parties and compel the member of a party to cast vote against his independent and free will; that the impugned legislation has been brought on 24.08.2014, after holding of the election, therefore, would not be applicable retrospectively, particularly, when it does not contain any . Express provision qua its retrospective applicability and it is settled law that a statute would be deemed applicable from the date of its promulgation, unless retrospective effect has been given thereto with express provision. Lastly, he emphasized that the Provincial Government is not invested with the power to legislate for Election Commission. He sought that the impugned law be declared and ultra vires. 8. Conversely, learned Advocate-General contended that the provisions of section 78-A of the Act is not in conflict with any of the Fundamental Rights as guaranteed by the Constitution, rather are in consonance with the doctrine of the Constitution. He while referring to Proviso to subsection (1) of section 78-A of the Act, contended that a proper opportunity of hearing in the shape of a show cause, has been provided to a member before declaration of his defection from the political party. He went on to say that impugned enactment is akin to Article 63-A of the Constitution, which has been held as a valid law by the Hon'ble Supreme Court in its authoritative judgment in case of Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others" (PLD 1998 Supreme Court 1263). He further contended that the impugned legislation has been made on the analogy to bring stability in the polity of the country and to eradicate cancerous vice of floor crossing. The basic of the impugned enactment contained in Paragraphs (a) and (b) to explanation to clause (1) thereof is to ensure that a member of the Council should not vote contrary to any direction of the Head of the party to which he/she belongs nor he/she should abstain from voting in the Council against the party policy in relation to a vote of confidence or a vote of no-confidence or approval of annual budget. 9. In respect of applicability of the impugned enactment, learned Advocate General contended that the Local Government election was divided and scheduled in two phases/parts. The first part was with regard to election for the categories/Seats viz (i) General Members (ii) Women Members (iii) Peasants and Worker (iv) Youth Member and (v) Non-Muslims Member in each Village Council,
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Neighborhood Council, Tehsil/Town Council and District Council of the Province, which was scheduled since 08.04.2015 till 07.06.2015 i,e, the date of final result. The second part of the election was qua the seats of Nazim and Naib Nazim of District/City/Tehsil/Town Councils, and as per schedule 30th August, 2015, was declared as a Polling day. He contended that the first phase of the election was non-political and on non-party basis, while that of the second part was on the strength of Party slogan/ticket. He clarified that the impugned legislation has been made on August 24th 2015, i,e, before 30th August, 2015, (the day of polling for the seats of Nazim and Naib Nazim) for which the petitioners were electorates, therefore, the legislation being prior than the Polling day of the election, is very much applicable to the petitioners. He sought dismissal of the petitions. 10.We have heard the exhaustive submissions advanced from both the sides and perused the record along with impugned legislation. 11.The democratic setup of our country is governed by three tiers system i,e, the Local Government, constituted at District, Tehsil and Union Councils level in each Province. Provincial Legislative Assembly, and Parliament at the Federal level, comprising the Upper House (Senate) and the Lower House, casually referred to (the National Assembly). A strong democracy, no doubt, preconceives of a strong party system, meaning thereby that the members belonging to a Party owe allegiance exclusively to the Party to which they belong. Though, in greater number of countries the democratic set-up is based on two party systems. Pakistan and its neighbours are some of the countries in which multi party democratic system exists. In this multi party system of democracy, besides consisting of the representatives having party affiliation, there are other independent legislature who are unattached with any Political Party. One of the malady engulfing such multi party system. is the instance of floor-crossing by the legislature, the dictionary meaning of which can be find in word "defection", which is synonymous to the word "abandonment of loyalty", and connotes a change in party affiliation or a shift of allegiance. This is a malady which exists as an integral part of every democracy and is an evil rooted within. 12.Since, there was no specific law governing the issue of defection or to deal with the problem of legislature, changing their allegiance from one party to another on consideration other than a call of conscience, therefore, it was decided to put the democracy on the right track, so a constitutional amendment was brought in the Constitution of Islamic Republic of Pakistan, 1973 by inserting Article 63-A. The evolutionary developments resulting into the above amendment are to be discussed in the later part of the judgment. 13.One thing has remained uncontested, rather one of the learned senior counsel in the connected writ petition, at the very outset, has categorically argued that he would not press his petition to the extent of the legislative competence of the Provincial Government, because Article 140-A of the Constitution of the Islamic Republic of Pakistan, 1973, cast duty on the Provincial Government to establish the Local Government system and devolve Political, Administrative and Financial responsibility and authority to the elected representatives of the Local Governments. Likewise, Article 32 of the Constitution emphasizes the role of the Federal Government in promotion of the Local Government Institutions. Of course, the Article ibid, besides, the Federal Government under a laden duty to encourage the Local Government Institution composed of elected representatives of the areas concerned and in such Institutions special representation shall be given to Peasants, workers and women. As per provisions of. Article 140-A(2) of the Constitution, on establishing of the Local Government system, the Election Commission of Pakistan, shall hold the election of the Local bodies. 14.From the bare reading of the above referred two Articles of the Constitution, it is manifest that each Provincial Government in the country "by law", shall establish a Local Government System and the Federal Government shall promote the local Government Institution. The words "by Law" in
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Article 140-A of the Constitution, would reveal that the Provincial Legislature has exclusively vested with the powers to make law for establishment and running the affairs of the Local Government System in the Province. In pursuance of the provisions of Article 140-A of the Constitution, the Provincial Government of Khyber Pakhtunkhwa legislated and published the Khyber Pakhtunkhwa Local Government Act, 2013, for constructing and regulating the Local Government Institutions, strictly in accordance with the requisite of Articles 32, 37 and 140-A of the Constitution. Chapter XIV of the Act ibid deals with the matter and manner of conducting Local Council Election, whereas section 78 provides the requisite qualification of a candidate for holding an elective office or membership of a Local Council. The under challenge section 78-A has been inserted in the Act, 2013, through third amendment Act, 2015, for regulating the disqualification of elected member from the Local Council on the basis of his/her resignation from membership of his/her political party or joining another party in the Council or floor crossing and political disloyalty. To cut it short, the incurring of disqualification of a person holding an elective Office or membership has been borrowed in verbatim from Article 63-A a the Constitution with a slight modification of providing an opportunity of defence to the defected/disqualified candidate/member. 15.In light of the above observation and legal as well as factual matrix of the validity of under challenge amendment, the following legal points require determination:- i. Whether the impugned legislation i,e, section 78-A of the Local Government (third Amendment), Act, 2015, is ultra vires, if no,2. Whether it would be applicable to the petitioners or not? 16.For determination of the aforesaid points, it would inevitable, rather advantageous to have a glance over the legislative history of the country regarding defection. Because in the recent past, the democratic system of the country has undergone successful democratic transition and the Political Parties System is on the pavement of institutionalization of cancerous vice of floor- crossing, Pakistan was unable to achieve political stability, which necessitated the constitutional amendment. The earliest effort to seek a legislation on defection, found appearance in the two identical motions (Private Members Bill), introduced by two members of the then National Assembly of Pakistan, Messrs Ch. Azizuddin and Yusuf Haroon, in the Assembly on 05.09.1958, however, before any action could be taken on the Bills, the democratic train of the country was unfortunately derailed from its tracks on 07.10.1958, resulting in the dissolution of Assemblies and abrogation of the Constitution of 1956. The first legislative measure dealing with the vice of floorcrossing/defection was introduced by promulgating the Political Parties Act, 1962 (the Act), which came into effect on 15.07.1962, wherein section 8 of the Act of 1962 was the relevant law on the subject. For the sake of convenience, subsection (2) of section 8 of the Act is reproduced below:- "(2) If a person, having been elected to the National or a Provincial Assembly, as a candidate or nominee of a Political Party, withdraws himself from it, he shall, from the date of such withdrawal, be disqualified from being a member of the Assembly for the unexpired period of his terms as such member unless he has been reelected at a bye-election caused by his disqualification" At the time the Political Parties Act, 1962, was promulgated, the Constitution of 1962, was enforced in its original form. Section 8(2) of the Act of 1962, held the field until it was omitted with retrospective effect from 08.05.1974. In the meantime, Constitution of 1973 was adopted. While the Constitution Bill was being piloted in the Assembly, the then Law Minister Mr. Abdul Hafeez Pirzada, in his speech addressed in the Assembly stressed the need for discouraging the tendency of opportunism, adventurism and defiance by the members of Political Parties of the whip or the party whip. 17.After adoption of Constitution of 1973, through subsection (2) of section 8 of the Act, which provided for disqualification of an elected member of an Assembly who after his election on the ticket of a political party defects or withdraws from that party, was omitted from the Act, but proviso to Clause (5) of Article 96 of the Constitution of 1973, which provided that if a member of
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Assembly elected as a candidate or nominee of a Political Party casts his vote on a resolution of non-confidence contrary to the majority vote of that party, shall be disregarded, severed as an effective check against the defection of the elected members of the Assembly of a political party. Article 96 remained as part of the Constitution of 1973 until 02.03.1985, when it was omitted by the Presidential Order No,14 of 1985. After omission of Article 96 of the Constitution of 1973, there was no law in the field in Pakistan dealing with floor-crossing or defection. To fill up this gap, Act XXII of 1985, was passed by the then National Assembly of Pakistan on 24.12.1985, wherein section 8- Brelatingto disqualification on ground of defection etc was inserted. Later on, through Ordinance No, X of 1990 dated 22.10.1990, explanation to section 8-B of the Act was added. Ordinance VIII of 1991 promulgated on 01.02.1991 repealed Ordinance X of 1990 and reenacted the above explanation added to section 8B ibid on 22.10.1990. However, the Ordinance VIII of 1991 could not be placed before the Assembly as required by Article 89 of the Constitution of 1973, as a result it lapsed after four months of the date of its promulgation and consequently, stood repealed under the Constitution. With the repeal of Ordinance VIII of 1991, the explanation added to section 8-B of the Act also stood repealed from the statute book. Before the general elections of 1993, Ordinance XXX of 1993 was promulgated by the Caretaker Government on 07.10.1993, wherein amendments were made in section 8B of the Act. Since, the Ordinance XXX of 1993 expired on or about 6.02.1994, the original section 8-B of the Act stood revived. There was controversy about the legality and enforceability of the above section 8-B of the Act and because of this reason the same could not be effectively pressed into service against the members of the Assemblies who indulged in floor crossing and political disloyalty. 18. The matter regarding interpretation of section 8-B(2) came up before the Hon'ble Supreme Court in 1990 in case of Humayun Saifullah Khan v. Federation of Pakistan (PLD 1990 SC 599), but could not be resolved as the case was remanded to this Court by majority view of the Hon'ble Judges for deciding the writ petitions from which the above appeal had arisen. Then in case of Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan (PLD 1992 SC 646), wherein dissolution of the National Assembly and the dismissal of Mohtarama Benazir Bhutto's Government in 1990, were assailed and one of the points which was agitated was the effect of defection. In this authoritative judgment his lordship Mr. Justice. Shafiur Rehman, emphasized the vice of defection in these golden words:- "The preamble to our Constitution prescribes that the State shall exercise its powers and authority through the chosen representatives of the people. Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is a resign to shed off his representative character which he no longer represents and to fight a re-election. This will make him honorable, politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is normal course, the elector has wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the worldly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State". 19. After that, the effect of section 8-B of the Act was agitated once again before the Hon'ble apex Court in case of Pir Sabir Shah v. Shad Muhammad Khan, (PLD 1995 SC 66), in which on account of defection of two members of the NWFP (now Khyber Pakhtunkhwa) Assembly belonging to PML(N) and ANP, the Government of Pir Sabir Shah was toppled down and Mr. Sherpao's Government belonging to PPP was installed. In the majority view of 7-5 Hon'ble Judges, it was held that the provisions of section 8-B(2) and (3) of the Act were in conflict with Article 63(2) of the Constitution
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to the extent of forum which under the Act was the august Supreme Court, whereas in clause (2) of Article 63 of the Constitution, the Chief Election Commissioner was the forum provided, and thus the later shall prevail. On the other hand, in the majority view, it was held that there was no inconsistency between subsection (3) of section 8-B of the Act and clause (2) of Article 63 of the Constitution and that above section 8-B was intra vires and was intended to suppress the mischief of floor-crossing which was for the good of the country. Because of the majority view in the case of Pir Sabir Shah (supra) the vires of section 8-B remained clouded. In the above referred era, floor- crossing and changing, political loyalties, were very common, which played a pivotal role in destabilization of democracy as well as caused a great deal of damage to the reputation of political stalwarts of the country in the general public, as their acts were generally and commonly acknowledged and illustrated as horse trading, lotacrasy etc. The evil of political defection became a matter of national concern and it was decided that if it is not combated, it is likely to undermine the very foundation of democracy and…
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