P L D 1999 Lahore 115 (PLP)

"Faithful to the declaration made by the Founder of Pakistan, Quaid‑e Azam Muhammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic Principles of Social Justice; Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny; Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order; Do hereby, through our representative in the National Assembly, adopt, enact and give to ourselves, the Constitution."

6. Learned counsel for the petitioners were unanimous that it had been provided at the very outset that the State shall exercise its power and authority through the chosen representatives of the people. They referred to Article 7 of the Constitution to contend that with Article 2A serving as preface to the Constitution at the relevant time the State was defined to mean the Federal Government and Provincial Assembly and such Local and other authorities in Pakistan as are by law, empowered to impose any tax or cess. The argument was stretched further with reference to section 137 of the Punjab Local Government Ordinance, 1979 with Second Schedule, Part I to contend that since the Union Council is empowered to impose tax, therefore, they are as much part of the State as any other organ. Article 32 was specifically referred to submit that it has been commanded therein the State shall encourage the Local Government Institutions composed of elected representatives of the area concerned and in such institutions special representation will be given to peasants, workers and women.

6. Learned counsel for the petitioner then referred to Article 8 generally and sub‑clause (2) of the said Article specifically to contend that it is now well -accepted that any law found to be insistent with the rights conferred by Chapter 1 of Part II of the Constitution shall be declared as void to the extent of such inconsistency. They then relied on Articles 4 and 25 of the Constitution to raise oft‑repeated contentions that all citizens are equal before law and are entitled to equal protection of law. Additionally it was submitted that the right of vote conferred on the citizens could not be abridged or taken away by amending Ordinance I of 1998. All in all it was submitted that prior to the amendment of Ordinance VI of 1979 the rural population had the right to vote even at grass roots and at every tier of local Government while now with the amendment brought about by Ordinance No. l of 1998, the said population of the country has been denied this right in complete violation of the various provisions of Constitution and instead nomination has been provided at the grass roots. It was then argued with reference to Articles 16 and 17 that freedom of assembly and freedom of association is the right of all citizens but till date it is not known as to whether the elections are being held on party basis or non‑party basis. Learned Additional Advocate‑General, Punjab, on the other hand, took time and after few hearings, did make a positive statement that the elections would be held on non‑party basis. The arguments were summed up by reference to Article 128 of the Constitution of Islamic Republic of Pakistan, 1973 that there did not exist circumstances which render it necessary, to promulgate the Ordinance and the same could have been debated in the Provincial Assembly.

7. Syed Shabbar Raza Rizvi, Advocate has specifically referred to section 15 of the Punjab Local Government Ordinance No.VI of 1979 to contend that the Election Authority having been appointed by the Government to conduct elections of Local Councils it is inherently contradictory that one of the Local Council namely Union Council is being nominated by the Government and so is the Sarpunch thereof. He made an additional argument that population has been defined in section 3(xxviii) to mean the population in accordance with the last preceding census officially published while the present elections are not being conducted in accordance with last census as Electoral Rolls published for the said elections are based on the census of 1981.

8. Mr. Naveed Rasool Mirza, Additional Advocate‑General on the other hand maintained that suffrage is a State privilege and the policy in regard thereto can be framed by the Government. He proceeded to quote from the Constitutional Law in the United States of America by Thomas M. Cooley (reprint 1994) at page 327 which reads as follows:‑‑ "The Constitution of the United States, except in particulars specified further on in this chapter does not in any manner intermeddle with State and Municipal Elections, and they are consequently in most respects left exclusively to State regulation and control. States establish for their own people the rules of suffrage, and it is in State constitutions and laws, and in the decisions of State Courts, that the rules and principles are to be looked for which govern such elections. Suffrage is never a necessary accompaniment of State citizenship, and the great majority of citizens are always excluded and are represented by other at the polls, sometimes also, suffrage is given to those who are not citizens; as has been done by a number of the States, in admitting persons to vote who, being aliens, have merely declared their intentions to become citizens."

9. It was submitted that in the elections of Local Councils nomination is not all that alien and that the same is in vogue in democratic systems in the world and that State can make a departure from elections and adopt nomination for the good of the society and in this regard further relied on maxim "Salus populi est suprema lex (Public interest is above the individual interest). He further argued that the policy as to election is right of State and State can adopt any measure including nomination as according to him the right to vote is subject to special knowledge of people who are to run the affairs of the Government. Section 13 sub‑clause (3) was relied to contend that the principle of governing the election of Local Councils are to be determined by the Government. As far the argument that there did not exist the circumstances to promulgate the Ordinance it was submitted keeping in view the demand of election, need for election and the fact that census would be completed in 1‑1/2 years, there did exist circumstances to promulgate Ordinance so therefore, Article 128 was rightly invoked. Reliance was placed on Collector Custom, Karachi and others v. M/s. Nes Electronic (Private) Ltd. and others PLD 1994 SC

363. It was also argued that by introducing nomination at Union Council level one tier of the learned Council has been removed in the rural area so as to bring it at par with the urban area. The precise argument was that the Union Council as existing in the rural area had no equivalent in the urban area. It was then argued that nomination is primarily a political question and cannot be agitated in Court of law. Again, reliance was placed on Cooley on Constitutional Law of United States which may be quoted verbatim:‑‑ "Even the existence or non‑existence of a republican form of Government and whether the initiative and the referendum violate the guarantee are held to involve a political question, and so appear to be a question which are involved when Congress, as in the case of ‑the Federal Maternity Act, attempts to make expenditures for purpose and objects which are State and Local rather than National in their character. Even the contention which was made in the National Prohibition cases that there was under an underlying principle of personal liberty and of local and State home rule, which controlled the whole instrument and all amendments thereto, and that the 18th Amendment violated this principle, was held to involve a political and not a justifiable question." Article 17 was then referred to contend that every citizen has the right to form association or union subject to any reasonable restrictions imposed by law and in the interest of sovereignty or integrity of Pakistan, public order or morality. It was submitted that public order or morality are also the conditions which are to be looked into before freedom of association could be allowed to any citizen. He concluded that nomination of members of "Panchayat" is need of time and that it has rightly been ordained in the Ordinance.

10. In order to better understand the controversy being raised through the present Constitutional petitions it is all important that the complexion and composition of Union Councils be understood as it came to be after the amendment brought about by Ordinance No.I of 1998. The system of Panchayat has been introduced in Ordinance No. VI of 1979 and the Constitution thereof has been defined that Panchayat of each village having the population of not less than 300 provided that if a village has population which is less then 300 it may be added to one or more villages to make up the required population and then sub‑clause (a) has been added to section 9 of the Ordinance No. VI of 1979 which reads as follows:‑‑ Panchayats.‑‑Such numbers as are determined in the following manners:‑‑ (i) for population not exceeding 1000 5 members (ii) for population exceeding 1000 but not exceeding 2000 not exceeding 6 (iii) for population exceeding 2000 but not exceeding 4000 not exceeding 7 (iv) for population exceeding 4000 but not exceeding 7000 not exceeding 8 (v) for population exceeding 7000 but not exceeding 10000 not exceeding 9 (vi) for population exceeding 10000 not exceeding 10

11. Section 12‑B lays down that the members of Panchayat shall be nominated by the Government and that the Sarpunches of all the ' Panchayats in the area of Union Councils shall be ex officio members of the Union Councils of that area and by way of proviso added to subsection (2), section 12 the Sarpunches of the Union Council are also to be nominated by the Government. The complexion of Union Council which oozes out of these provisions is that the Chairman of all the Panchayats in the area of. the Union Council shall become the member of the Union Council and since the Chairman of the Panchayat is the nominated member, therefore, the whole Union Councils of an area shall be composed of nominated members. As far the Chairman of the said Union Council is concerned it is ordained that the member of Zila Council elected from Union Council shall be the ex officio Chairman of the Union Council. In short the whole of Panchayat and the Union Council shall be manned by nominated members and then the Chairman of the Union Council. Section 49‑A has gone a step further wherein it is provided that Panchayat may act as advisory body to the Union Council and in which it is located and perform such other functions as may be assigned to it by the Government. This composition and complexion of Union Council has been challenged and in that first reference may be made to Article 2A of the Constitution wherein it is agreed by the Founding Fathers of the Nation that the State shall exercise its power and authority through chosen representatives of the people and as the State includes Union Council, therefore, this will and determination of the Founding Fathers cannot be negated by introducing a patch of nominations in the election laws. It was agitated by the learned counsel for the petitioners and rightly so that nomination is a word unknown in the realm of elections and cannot be countenanced in these progressive times. The fate of the people cannot be subjected to the choice of the Deputy Commissioner as the choice of people through election is a norm which has been recognised by all the civilised societies. Again the nomination allowed to be made by the Deputy Commissioner of the area would but be that of the Government in power, thus, negating the commands of Constitution contained in B Article 32 that State shall encourage local Government institutions composed of elected representatives of the area and in such institutions special representation will be given to peasants, workers and women. Now that principles of democracy has finaliy triumph in this country and people have heaved a sigh of relief from the rigours of Martial Law, the amending Ordinance which has introduced Panchayat and nomination at the grass roots is retrogressive and against the commands of Constitution. The reliance of learned Additional Advocate‑General, Punjab on Cooley is also of no avail because in the American Constitution, the rule of governance in so far as local Government has been left to the individual State itself, therefore, in the matters of local Government each State had the choice to adopt any principle including nomination but in our Constitution the command in regard to local Government institutions can be found in Article 32 wherein it is provided that State shall encourage local Government institutions composed of elected representatives of the areas concerned while no such command could be found in the American Constitution. Similarly, the reliance on subsection (3) of section 13 is of no avail as the principle to be determined by the Government are .in relation to election of Local Councils. The provision of this subsection could not, at all, be stretched so as to mean nomination. 12 State has been defined in Article 7 of the Constitution as follows:-- "In this part, unless the context otherwise requires the 'State means the Federal Government, Majlis‑e‑Shoora (Parliament), Provincial Government, Provincial Assembly and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess". Since the Local Councils which includes Union Councils are empowered to impose tax or cess and for that matter can frame by laws, if required by the Government as is evident from section 137 read with Part I of Schedule 2 of the Punjab Local Government Ordinance No.VI of 1979 and section 168 (ibid), therefore, a Union Council is included in the organs of State, if any authority is needed in this regard, reference may be made to Cantonment Board Rawalpindi and others v. Ghulam Habib Rana and others 1987 SCMR 1 and N.‑W.F.P. through Advocate‑General and another v. Yousuf Khan and others PLD 1995 SC

281. It would be noticed for the purpose of levying tax as provided under section 137 read with Part I of Schedule 2 of Ordinance No.VI of 1979 some sort of subordinate legislation is to be issued by the Union Councils. Similarly, powers of section 168 to frame by laws on the direction of the Government are to be exercised and both these powers can only be exercised by elected representatives and not by nominated member of the Panchayat or Union Council. Obviously, the amending Ordinance is violative of Articles 2A, 7 and 32 of the Constitution. Additionally, Article 8 generally and sub‑Article (2) ibid p specifically provides that any law which is found to be inconsistent with the fundamental rights guaranteed under Chapter 1 of Part II of the Constitution shall to such inconsistency be void and that State shall not make any law which takes away or abridges the right so conferred in any law made in contravention of this clause which to the extent of such contravention be void. It is provided in Article 25 of the Constitution that:‑‑ (1) All citizens are equal before the law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. It would be seen that the words of the Constitution are absolute and only exception is women and children when it comes to frame laws in regard to their person. Article 4 similarly relates to right of individual to be dealt with in accordance with law. It lays down that every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law wherever he may be. It is, thus, obvious from the combined reading of two Articles noted above that every citizen is to be treated equally and this is his inalienable right, I therefore, the urban population cannot be treated differently than rural population nor can be placed at a higher footing than the rural population, hence the right of vote, which has been snatched from the rural population of this country is obviously discriminatory, therefore, cannot be sustained. Reference may advantageously be made to the case of Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1998 SC

416. The argument that the Union Council was redundant in the rural areas and that by removal thereof, the rural population has been brought at par with the urban population suffers from in built fallacy. If a Union Council was surplus the legislative measure should have been to extinguish the same rather than to keep it with a different composition and that too, of nominated members which is highly undemocratic, therefore, the provisions of subsection (2) of section 12 as also section 12‑B of the Ordinance are also struck down on the touchstone of fundamental rights as contained in Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. As far the plea that the nomination to the Local Council is primarily a political question and cannot be agitated in a Court of law, the answer can be found in the rule of law laid down in Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1998 SC

416. Section 49‑A which has been added to the Ordinance No.VI of 1979 speaks of functions of the Panchayats and it has been so provided that Panchayat may act as advisory body to the Union Council in which it is located and perform such other functions as may be assigned to it by the Government. Now the Chairman of the Panchayat located in the area of the Union Council is to become the member of the Union Council while the Chairman of the Union Council is a member of Zila Council elected from the area of Union Council. In nutshell the nominated members of Panchayat are to act as advisory body of the nominated members of the Union Council and for such other functions as may be assigned to it by the Government. The discretion and authority as retained by the Government to assign them any function speaks of arbitrary powers with the Government which cannot be accepted in the matters of elected representatives. It is, thus, obvious that a Panchayat shall be taking dictation wholly from the Government which is absolutely illegal.

13. Learned Additional Advocate‑General, Punjab also made a reference to the famous legal maxim "salus populi est suprema lex" to contend that regard for the public welfare is the highest law. The proposition was convassed only to the extent of convassing the same because it was not shown as to how it is in the public interest that nomination would be better than election in so far as Panchayat and Union Council are concerned. The allied argument that right of vote is subject to the specific knowledge of people who has to run the affairs of the Government, again the so‑called specific knowledge was not divulged. The right to vote is basic in a democratic system, has been so recognised and exercised in almost all the democratic systems of the world, therefore, it cannot be abdicated in favour of so‑called knowledge of the people who has to run the affairs of the Government. As far the argument that it is the right of the citizen to form any association, it would be noted that it is subject to reasonable restrictions imposed by law in the interest of sovereignty and integrity of Pakistan, public order or F morality. It is common knowledge that feuds and bloody clashes takes place during the elections and it is normally alleged that it is because of affiliation with different political parties. Again it is a matter of record that murders have taken place on the basis of political rivalry. Since the elections are being held at grass roots which are primarily meant for the good of common man and his problem, therefore, it is advisable that political affiliation should be avoided so that chosen representative should not be partisan and be able to devote himself to the problems of common man. Subsection (3).of section 13 of Ordinance No.VI of 1979 would also be relevant in this context and the provision thereof can further be supported from sub‑clause (g) of section 29 (ibid). Since the whole effort of holding elections on non‑party basis seems to avoid any ugly situation of law and order as also morality, therefore, the elections on non‑party basis are held to be intra vires of the Constitution.

14. This brings me to the last common question as to whether there exist circumstances justifying the promulgation of Ordinance No.I of 1998, the power to promulgate the Ordinance is not denied but it was contended that there did not exist such circumstances to promulgate the Ordinance. It was admitted before me that the Local Bodies elections are being held in Punjab only while in the other three provinces either no such effort has been made or if made the same has been stayed by the Court. The learned Additional Advocate‑General, Punjab relied on Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11 to contend that it was held therein:‑‑ "However, before concluding the above discussion, we may observe that the Local Councils are the first tier of the democratic process and since generally they perform municipal functions, the general public is vitally interested in their existence and performance. They are sine qua non for strengthening the democratic process. They are the training ground for future political leaders of the national stature. We feel that the people have been denied said institutions for quite long period i.e. since August, 1993, the various dates fixed for their elections during the last about three years on one ground or the other were not honoured. It is hoped that the same are held without any further delay. With the above observations the petitions are dismissed with no order as to costs. " It was submitted that in view of the observations made by the Supreme Court as also the demand for elections coupled with the fact that census is likely to take 1‑1/2 years were circumstances which led to the promulgation of Ordinance No.I of 1998. It was also added that the Bill has since gone to the Standing Committee and shall be introduced in the Assembly in due course. Since the power to promulgate the Ordinance cannot be denied in view of Article 128, the other question is more or less subjective and in view of the observations of the Supreme Court, perhaps, it is rightly contended that there exist circumstances to promulgate the Ordinance. Anyway, the Bill has since been sent to the Standing Committee and it is hoped that it shall be introduced in the Assembly very soon.

15. Syed Shabbar Raza Rizvi, Advocate raised some additional arguments. He submitted that Electoral Rolls being used in this election are illegal being violative of Article 50 read with sections 3 and 18 of the Punjab Local Government Ordinance, 1979. He argued that population has been defined in the Ordinance to mean "Population in accordance with the last preceding census officially published", while in section 18, Electoral Rolls has been defined to mean the Electoral Rolls prepared for elections of Members of Provincial Assembly as amended from time to time, adjusted and arranged for Local Councils shall be the Electoral Rolls for elections to the Local Councils. The precise argument was that the elections are being held on the basis of Electoral Rolls prepared on the basis of last census held in the year 1981 and this is a clear departure from the provisions quoted above. I am afraid the argument is absolutely misconceived. The census of 1998 is not yet complete and is not officially published, therefore, the election being held on the basis of census of 1981 cannot be validly objected to.

16. For the reasons stated above, these petitions are partially allowed in that proviso attached to subsection (2) of section 12, section 12‑B and section 49‑A G alongwith section 6‑A, section 9‑A and section 3(xxvi‑a) are declared to be ultra vires of the Constitution, therefore, the same are struck down. H.B.T./M‑918/L Order accordingly.