Delimitation of constituencies

Interference with preliminary report of Delimitation Committee or order of Election Commission of Pakistan could not be made at the instance of former elected representatives on the ground that new delimitation would make his or her winning prospects bleak in elections or that an area where he or she was popular was no longer a part of the constituency from which he or she wanted to contest the elections

Delimitation of constituencies was to be carried strictly in accordance with the provisions of Chapter-III in Elections Act, 2017 as well as Chapter-III of Election Rules, 2017

Boundaries of electoral constituencies could not be altered at the whims of politicians

High Court declined to interfere in the matter as essential prerequisites for issuing a writ of certiorari did not appear to be satisfied

Constitutional petition was dismissed, in circumstances.

Constitutional courts do not, with ease, abdicate or surrender their jurisdiction to exercise judicial power, if the Court is of the view that order under challenge is illegal and outside the four corners of law and no other alternate or special remedy has been prescribed by law

No decision within the meaning of statute if there were anything done contrary to the essence of justice

Constitutional jurisdiction of High Court to judicially review orders, notifications and acts of Executive i.e. Delimitation Authority and Delimitation Committee is not barred.

Petitioners challenged the extension of territorial limits of the Cantonment by the Election Commission of Pakistan (ECP)

Validity

Power of de-limitation of constituencies based on geographical compactness and equal distribution of population squarely falls within the exclusive domain of the ECP

Under Chapter-III of the Elections Act, 2017, the ECP has the mandate to delimit constituencies

As per the provisions contained in S. 17 read with S. 19 of the Elections Act, 2017, the ECP can also exercise the powers of delimitation of territorial constituencies by dividing each Province into as many separate territorial constituencies as the number of general seats allocated to that Province as specified in Art. 51 of the Constitution

Moreover, the principles of delimitation are given in S. 20 of the Elections Act, 2017

Petitioners had raised disputed questions of facts in the case and factual controversy could not be resolved by the High Court while exercising jurisdiction under Art. 199 of the Constitution

Election Commission of Pakistan had not exceeded its powers whilst issuing the election schedule strictly in accordance with relevant provisions of the applicable law

Writ petition being not maintainable was dismissed.

Adjudication upon/consideration of multiple representations regarding delimitation of a district by the Election Commission vide consolidated order

Scope

Question before the High Court was whether Election Commission could dispose of multiple representations on delimitation of a district without a separate order on every proposal/representation

Held, that in a short span of time when a number of representations had been filed for each district, it was a practical and sensible procedure for Election Commission to decide the same in a consolidated order rather than deciding each representation separately which would have consumed more time with an acute likelihood of passing conflicting orders for the same district

Constitutional petitions were dismissed, accordingly.

At time of preliminary delimitation, a mechanism was laid down in the Elections Act, 2017 and the Elections Rules, 2017 to file proposals in form of representations before the Election Commission and it was obligation of the Election Commission to decide the same in accordance with law

Placing of proposal / representation to Election Commission by any voter of any constituency may invite attention of Election Commission to consider the same, but such person could not claim vested right that whatever proposal was placed by him should be considered and accepted by Election Commission in letter and spirit

Contesting of elections and right to franchise was Fundamental Right but to contest the same on basis of delimitation at one's own aspiration was not a Fundamental Right.

Petitioners impugned first proviso to R.8(2) of the Elections Rules, 2017 whereby for determination of quota for delimitation, Election Commission of Pakistan ("ECP") was to divide total population of district with quota per seat of the Provincial Assembly; provided that a fraction of more than 0.5 may be counted as one seat and a fraction of less than 0.5 may be ignored

Contention of petitioners, inter alia, was that such determination went against principles of delimitation given in the Elections Act, 2017

Validity

Section 20 of Elections Act, 2017 accentuated that population of a constituency shall not ordinarily exceed 10% for delimitation and in case it was exceeded, Election Commission would record reasons in its delimitation order and the impugned proviso only exemplified and differentiated that a fraction of more than 0.5 may be counted as one seat

No direct clash of the impugned proviso existed with R.8 of the Elections Rules, 2017 and second proviso to R.8 of the Elections Rules, 2017 further provided that the Election Commission may deviate from the principle laid down in the impugned proviso

Equal population in all constituencies was not possible practically and in order to meet exigency and emergent situations, Legislature had devised principles of delimitation with some permissible limits and variations in population in all constituencies subject to providing of reasons

No illegality therefore existed in the impugned proviso

Constitutional petitions were dismissed, in circumstances.

Mechanism and course of action was laid down under the law, for an aggrieved person to file proposal in form of a representation at the stage of preliminary delimitation and on filing of such representation(s), it was the responsibility and obligation of the Election Commission to decide the same in accordance with law

Law did not allow that whatever proposal placed by a voter or objector was to be accepted by the Election Commission in letter and spirit in all circumstances as a vested right

Contesting elections and right of franchise was a Fundamental Right but to contest election on basis of delimitation at one's own philosophy and aspiration was not a Fundamental right.

Law provided right to submit proposals by means of representation before Election Commission for making changes and modifications in preliminary delimitation of a constituency but after considering all cognate factors, it was the sole responsibility of the Election Commission to finalise delimitation

No one could claim vested right that his/her representation to the Election Commission be accepted by the Election Commission nor any person could carve out/delimit a constituency according to his desires.

Controversy regarding inclusion of certain census blocks by the Joint Census Commissioner in a constituency and union council of a different city

Election Commission, powers of

Scope

Election Commission of Pakistan had to delimit, reconstitute, alter or modify the final list of constituencies

Present controversy could only be set at naught by way of referring the matter to the Election Commission, which after holding hearing and associating all the stakeholders was competent to pass an order

Joint meeting was held between the District Administrations of the two cities and the Joint Census Commissioner, and on the basis of said meeting, a joint visit was made and recommendations were made by the revenue field staff

High Court directed the Joint Census Commissioner to send said recommendations to the Election Commission, which may decide the present controversy after associating all stake holders and shall pass an order in consonance with the Delimitation of Constituencies Act, 1974

Constitutional petition was disposed of accordingly.

Power of Majlis-e-Shoora (Parliament) to provide law for "the delimitation of constituencies by the Election Commission"

Scope

Such power would include the delimitation of constituencies of Local Government.

Delimitation of constituencies of the Local Government was part of the process of organizing and holding elections honestly, justly and fairly which was the constitutional mandate of the Election Commission

Power to carry out such delimitation should vest with the Election Commission.

Power to delimit constituencies conferred on the Provincial Government at the exclusion of the Election Commission of Pakistan by virtue of Ss. 8, 9 & 10 of Punjab Local Government Act, 2013

Constitutionality

Power to hold elections of the Local Government stood vested in the Election Commission in terms of Art.140A of the Constitution

Delimitation of constituencies of the Local Government was part of the process of organizing and holding elections honestly, justly and fairly which was the constitutional mandate of the Election Commission

Power to carry out such delimitation vested with the Election Commission

Process of delimitation of constituencies for an election was one of the important steps to organize and conduct elections because it was only with reference to a constituency that a candidate would exercise his right/option to contest and a voter would exercise his right to vote

Sections 8 to 10 of the Punjab Local Government Act, 2013 and the relevant Rules framed thereunder were ultra vires of the Constitution in so far as they empowered the Provincial Government to carry out the delimitation of the constituencies for the Local Government

Supreme Court directed that Governments, Federal and Provincial (of Punjab) should carry out appropriate amendments/legislation to empower the Election Commission to initiate and carry out the process of delimitation of constituencies for the Local Government elections, and such exercise should be completed within a period of five months; that the Election Commission should thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/ amendments in laws in terms of present order; that the Election Commission should further ensure that the announcement of election schedule and the process of holding the same was complete by or before 15th of November, 2014

Appeal was disposed of accordingly.

Power of Majlis-e-Shoora (Parliament) to provide law for "the delimitation of constituencies by the Election Commission"

Scope

Such power would include the delimitation of constituencies of Local Government.

Stage of delimitation of constituencies occurred prior to and was altogether distinct from the election process that was announced in an election programme

Delimitation of Local Government constituencies could not be deemed to fall within the election process conducted by the Election Commission.

Duty of the Election Commission to "hold" elections to Local Governments did not include the process of delimitation of constituencies.

Process of elections had two fundamental parts or components; substantive organizational part including the preparation of the electoral list and the process of delimitation of constituencies, and the managerial or supervisory part of conducting the elections, where candidates come out to contest and the electorate went to polls

When both said parts were executed in tandem it was said that the elections were held in a country

Holding elections subsumed all the components of the electoral process especially the acts of organizing and conducting elections

Constitutional role and obligation of the Election Commission of Pakistan clearly defined the scope and meaning of the word 'election'

which was an amalgam of all the steps starting from preparation of the electoral rolls, leading to delimitation followed by the filing of the nomination papers, electoral public participation, polling of votes and finally concluded with the announcement of the results

Like a continuous assembly line, one component followed the other providing a complete electoral system

To organize, conduct and make arrangements for holding elections covered the entire electoral process and was synonymously referred to as "election" for the purposes of Election Commission of Pakistan and the Constitution.

Section 10A of Punjab Local Government Act, 2013["Ouster clause"] ousting jurisdiction of any court, officer or authority to review or correct any delimitation of a Union Council or ward after the notification of the election schedule

Constitutionality and legality

Constitutional jurisdiction of High Court and Election Commission of Pakistan

Scope

"Reading down" a provision of a statute

Scope

Section 10A of the Punjab Local Government Act, 2013 ["Ouster clause"] not only attempted to completely curtail judicial power of the Constitutional Court, it also put fetters on the exercise of the constitutional authority of the Election Commission of Pakistan

Section 10A of said Act could not abridge or curtail the constitutional jurisdiction of the High Court to judicially review the orders, notifications and the acts of the executive i.e., the Delimitation Authority and Delimitation Officer

Section 10A purportedly ousted the constitutional jurisdiction of the Election Commission of Pakistan from performing its constitutional role under Arts. 140A(2), 218(3) & 219(d) of the Constitution, which was neither conceivable nor permissible

High Court read down S.10A of the Punjab Local Government Act, 2013 and declared that the ouster clause did not in any manner curtail or abridge the jurisdiction of the Constitutional Court or the Election Commission of Pakistan

Constitutional petition was allowed accordingly.

Process of delimitation of Union Councils and Municipal Committees into wards was carried out by the Provincial Government under the Punjab Local Government Act, 2013, at the exclusion of the Election Commission of Pakistan ("Election Commission)

Legality

Plea of petitioners that Government in power had carried out delimitation process in a partisan manner; that Government in power tried to exploit the electoral independence and the right to vote of the people by gerrymandering and re-mapping Union Councils and Municipal Committees into wards, in a manner that best suited their political interests

Validity

By virtue of Ss.8, 9 & 10 of Punjab Local Government Act, 2013 delimitation of constituencies, which was also a part of the electoral process, had been entrusted in the partisan hands of the ruling government, which was unconstitutional

Under Ss.8, 9 & 10 of the said Act, Election Commission played no role in delimiting the Union Councils or the Municipal Committees into wards

Role of the Election Commission had been restricted to the conduct of elections, abridging the overarching and all-embracing role of Election Commission to organize, conduct and make arrangements for holding elections in violation of Art.218(3) of the Constitution

Overview of the Punjab Local Government Act, 2013 showed that the constitutional role of Election Commission had been weaved into all the main electoral stages of the elections to the Local Government except "delimitation"

Disconnection existed between the Constitution and the provisions of the Punjab Local Government Act, 2013 resulting in curtailing the constitutional role and obligations of Election Commission, which was not permissible

Sections 8, 9 & 10 of the Punjab Local Government Act, 2013 and Rules 3 to 8 of the Punjab Local Governments (Delimitation) Rules, 2013 were inconsistent with Art.218(3) read with Art.222(b) of the Constitution as they abridged and took away the constitutional role and obligation of Election Commission besides offending Arts.3, 4, 9, 14, 17, 19 & 25 of the Constitution and as a consequence were declared to be unconstitutional and, were struck down

High Court set-aside impugned orders of Delimitation Authority and the impugned final notifications issued by the Delimitation Officers and directed that the Election Commission should perform its constitutional role without further ado and hold elections to the local governments in Punjab province forthwith; that Election Commission need not wait for the legislative amendments to the Punjab Local Government Act, 2013 in the light of present judgment; that Provincial Government under Art.140A of the Constitution should take necessary steps for carrying out amendments in the Punjab Local Government Act, 2013 in the light of the constitutional role and obligations of Election Commission provided under Part VIII of the Constitution, as laid down in the present judgment, as soon as possible, so that democracy in the country was further strengthened

Constitutional petition was allowed accordingly.

Petitioner assailed amendment and alteration/modification in final list of constituencies on the ground that after finalization of voters' list no change in constituencies could be made

Validity

At the dint of section 10A of Delimitation of Constituencies Act, 1974, starting with non-obstante clause, "notwithstanding", Election Commission was fully empowered that it could, at any time, of its own motion, make such amendments, alterations or modifications in final list of constituencies published under S.10A (3) of Delimitation of Constituencies Act, 1974, or in the areas included in a constituency as it would think necessary

In case the petitioner felt that there was any room for interpretation or clarification of the same, High Court observed that it would be appropriate for them to have approached Supreme Court

Any interference in election process at such belated stage would cause interruption in the process and delay the same

High Court could only interfere in election matters if interference was to sub-serve the election, election process and not to interrupt or interfere with election or election process

Petitioners, if permissible under the law and if so advised, could either approach the Supreme Court and or file appeal before Election Tribunal, constituted under S.57 of Representation of the People Act, 1976

Petition was dismissed accordingly.