Local Government Elections
Local Government Elections legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Scope of Clause (ii) of the proviso to sub-rule (3) of Rule 18 of the Sindh Local Councils (Election) Rules, 2015 stated.
Case of petitioner is that the upper age limit prescribed for contesting election of local bodies is ultra vires to the constitutionally fundamental guaranteed rights
Validity
Law recognizes such person as a voter who attains the age of eighteen years meaning thereby that he/she is qualified to elect his/her representative as per his/her choice and sweet will but simultaneously he/she is qualified to contest election of local bodies until he/she attains the age of twenty five years (which is a marked difference of seven years)
Such like barrier is not convincing enough for a prudent mind to accept this analogy as to how a person can be put out of arena to contest election of local bodies without exhibiting any rationale in this regard, thus, although in logical and rational parlance, age of eighteen years itself is sufficient equally for the purpose of contesting election of local bodies on the yardstick of constitutionally fundamental guaranteed rights i.e. Arts. 4(4)(1) & 4(4)(15) of the Azad Jammu and Kashmir Interim Constitution, 1974, but it is up to the Legislature to expose its wisdom and to bring it in consonance with the constitutional guarantees
However, age of twenty-one years as unanimously prescribed by all the four provinces of Pakistan seems plausible in this regard at local bodies level
To declass a person/voter randomly in the guise of age is not a reasonable classification as no legislation or specific expertise is rationally required in this regard
Schedule 2 Part II Entry No. 3 of the Azad Jammu and Kashmir Local Government Act, 1990 inserted through Azad Jammu and Kashmir Local Government (Amendment) Act, 2021 is severable from the rest of Act
Impugned provision in parlance of the scheme of Constitution cannot stand ex proprio vigore and lacking the ratio legis (the reason or purpose of making a law)
Impugned legislation is liable to be sent in hibernation
Constitutional petition was accepted, in circumstances.
Supreme Court observed that the matter of holding local government elections laid within the domain of the Election Commission as per Art. 219(d) of the Constitution and a province could not dictate to the Commission, if and/or when, the same could be held; that on the contrary, Art. 220 of the Constitution mandated that it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions; that in case the Federation and/or the Province(s) created hurdles in the way of the Election Commission holding elections, they would be violating the Constitution, which may attract serious consequences
Applications were disposed of.
Contentions that Art. 128 of the Constitution empowered promulgation of Ordinances by Governors under certain stipulated, limited and prescribed conditions and such power could only be exercised when the provincial assembly was not in session; that in the present case the Provincial Assembly was prorogued on 1st February 2021, whereas the Punjab Local Government (Amendment) Ordinance, 2021 ['the Amendment Ordinance'] was promulgated by the Governor on 3rd February 2021; that the Provincial Government could not have come up with the 70 page Amendment Ordinance overnight, and have it drafted, vetted, finalized and then approved by the provincial cabinet and having done so, sent it to the Governor, through the Chief Minister, for the issuance of an Ordinance; that it was clear that the Amendment Ordinance was already ready for promulgation when the Provincial Assembly was prorogued but was withheld by the Governor to avoid submitting it as a bill before the Provincial Assembly for its consideration, and such act of the Governor was a fraud on the Constitution
Held, that there was substantial merit in said contentions because it was extremely difficult to believe that a 70 page Amendment Ordinance suddenly emerged for promulgation by the Governor immediately after proroguing the provincial assembly, therefore, it needed consideration whether this constituted a case of mala fide and intentional contravention of Art. 128 of the Constitution by the Provincial Government/Governor, and if so, what were the consequences thereof
Applications were disposed of.
Petitioners were returned candidates and were aggrieved of not being provided opportunity of hearing by the Presiding Officer against no-confidence vote to their nomination
Validity
Provision of R. 6(4) of Punjab Local Government (Vote of No-Confidence) Rules, 2018 was not applicable to proceedings before the Presiding Officer under R. 4(1) of Punjab Local Government (Vote of No-Confidence) Rules, 2018 when he was to decide as to on which date meeting was to be called for considering motion
Presiding Officer was to notify person against whom no-confidence motion was to be pleaded before the House to defend himself which notices were already issued to petitioners requiring them to defend themselves
Issuance of notice to petitioners before fixing date for considering motion of no-confidence against them was not a legal requirement, non-compliance of which would have rendered said notice as illegal or without jurisdiction
No prejudice was caused to the petitioners because they had right to defend no-confidence motion filed against them before the House in meeting fixed for the purpose
High Court declined to interfere in order passed by Presiding Officer
Constitutional petition was dismissed in circumstances.
Contesting candidate could not be disqualified from contesting election of Peasant/Labour seat on the pretext of owning 20 acres of ancestral agricultural land
Petitioner had neither filed any objection against the nomination papers before the Returning Officer nor he appeared at the time of scrutiny of the same
Returning Officer, after conducting scrutiny, accepted the nomination papers and contesting candidate was found to be eligible to contest the election for Peasant/ Labour member for Town Committee
No appeal against acceptance of the forms had been provided in Sindh Local Government Rules, 2015
Election Commission had notified the list of returned candidates and contesting candidate had been included in the said list
Petitioner had filed appeal against the acceptance of nomination papers of contesting candidate but Election Commission of Pakistan, Provincial Election Commission and Returning Officer were not impleaded in the same who were necessary and proper party
Petitioner had not produced any documentary proof with regard to his allegations
Verbal allegations could not be considered to be genuine
Notifications issued by the Election Commission of Pakistan which were still holding their field were not impugned by the petitioner
Question of status of contesting candidate could not be agitated at a belated stage
Petitioner had already been elected as member in Local Government Elections and was not contesting the present elections
Petitioner was not an aggrieved person nor he had any locus standi to file the constitutional petition
Constitutional petition was dismissed in circumstances.
If non-disclosure about pendency of a criminal case had been made, for which the candidate offered a reasonably plausible explanation, then the affidavit could not be considered as false or incorrect
Candidate had explained that an FIR was registered against him and after investigation, he was informed by the police that his case had been disposed of in class "C"
Non-disclosure of a fact which otherwise, if disclosed, could not debar the candidate from contesting the election, could not be made a ground to preclude the candidate from contesting the election
Nomination papers of candidate had been incorrectly rejected
Appeal was allowed accordingly.
Where the explanation of a candidate contesting the election was plausible in regard to non-disclosure of any fact in the affidavit, it could not be denied the right to contest for elections
However, if the candidate had wilfully made a false and or incorrect statement in the affidavit sworn in with the nomination papers concealing material particulars in order to avoid disqualification, then the (Election) Tribunal would not travel deeper into the explanation, once it was established that the disclosure of such material particulars would have exposed him to disqualification.
Mandatory nature of requirement of having a proposer and seconder from the same constituency from where a candidate had been nominated
Constituency
Scope
Petitioner filed nomination papers for elections to the seat of General Member of a Ward in a Union Council, and admittedly, the proposer and seconder belonged to a different Ward of the same Union Council
Question before the High Court was as to whether the proposer and seconder under R. 12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 must be from the constituency from where a candidate had been nominated
Held, that a "constituency" was a territorial or geographical compact where a group of voters held an election to elect a representative and, in the present case, Ward was the smallest territorial compact where elections were held to directly elect a person to the seat of a General Member, who then became one of the six General Members of the Union Council, which constituted a Local Government and therefore, "Ward" was "a constituency"
No one could contest elections on his own unless nominated by a proposer or a seconder from the same constituency and "nomination" meant the act or instance of appointment of a person to an office
Philosophy and rationale of nomination was to actualize the Constitutional vision of representative democracy by ensuring that the contesting candidate was a person who had been nominated by the electors (proposer and seconder) of the constituency to represent the constituency, if elected and nomination went to the heart of the concept of representation of electoral constituency in a democracy
Every constituency must nominate a candidate to represent the constituency and without inviting nominations, anyone could come forward and contest elections from an electoral constituency, resulting in a sham electoral representation, thereby usurping the right to political participation of the voters of the unrepresented constituency
In order to confirm the representation of the constituency, the proposer and a seconder have to sign the nomination papers of the candidate contesting from the constituency which statutory requirement of a proposer and a seconder to be from the same constituency was provided under R.12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013
Elections, in the present case, were being held in a Ward which was a delimited electoral area, to fill the seat of a General Member, and therefore, a Ward was a constituency and the proposer and the seconder must be from the same said ward/constituency for the nomination papers to meet the requirement of R.12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013
Contention that a Ward was not a local government under S.2(v) of the Punjab Local Government Act, 2013 and since the elections were for electing members of the local government, the proposer and seconder could be from any ward of the local government, was not tenable as the election process under the Punjab Local Government Act, 2013 and the Punjab Local Governments (Conduct of Elections) Rules, 2013 worked on the basis of electoral constituencies and a constituency was primarily a geographical area with a pool of electors and could also happen to be a local government
High Court observed that importance of a proposer and seconder was in the context of a constituency and not of a local government and if the said contention was taken to be correct, certain wards in a Union Council would go unrepresented which was against the spirit of representative democracy and equitable representation of electoral constituencies
Nomination papers of a candidate were liable to be rejected if the proposer or seconder were not from the same constituency in which the elections were being held.
In terms of S. 18(12) of Sindh Local Government Act, 2013, a panel system had been introduced in the Union Council or a Union Committee and in S.18(14) it had been provided that if a political party or independent candidates failed to form a panel for contesting the elections, the nomination papers of all such candidates or nominees of a political party shall be deemed to have been rejected
Such requirement of forming a panel and in the event of failure to do so, the penalty of rejection of nomination papers on the face of it appeared to be a clog on the fundamental right provisions of the Constitution (Article 25)
Supreme Court declared that Ss.18(12) & (14) of Sindh Local Government Act, 2013 [added by S.4(c) of Sindh Local Government (Third Amendment) Ordinance, 2013] were violative of the said Act and the Constitution
Appeal was dismissed accordingly.
Sindh Local Government Act, 2013 empowering the Provincial Government to delimit constituencies for Local Government elections
Constitutionality
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
Fair elections would mean fair representation and delimitation of constituencies was a foundational step towards such end
Being one of the fundamental steps to hold fair elections, process of delimitation of constituencies had to be carried out by a body which was neutral and credible
Need for a neutral body to carry out the delimitation exercise was imperative because there were instances when in the said process the voting strength of a community, a minority or an ethnic group was diluted, which would be violative of the equality clause enshrined in 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 should vest with the Election Commission
Supreme Court directed that the Federal Government should make necessary enactments to empower the Election Commission to carry out the delimitation of constituencies of Local Governments; that the Provincial Government should also make necessary corresponding amendments in the Sindh Local Government Act, 2013; that such exercise should be completed within a period of five months and the Election Commission shall 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 the present order; that the Election Commission shall further ensure that the announcement of election schedule and the process of holding it was complete by or before 15th of November, 2014
Appeal was dismissed accordingly with the observation that the elections to Local Governments in province of Balochistan had already been held on the basis of delimitation of constituencies carried out by the Provincial Government, and since present judgment was prospective, it shall not, in any manner, affect the validity of the said election.
Power of delimitation of 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
Sections 8 to 10 of the Punjab Local Government Act, 2013 and the relevant Rules framed there-under 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 it was complete by or before 15th of November, 2014
Appeal was disposed of accordingly.
Duty of the Election Commission to "hold" elections to Local Governments did not include the process of delimitation of constituencies.
"Local Government Elections", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124945087
Precedents & Case Laws citing "Local Government Elections"
P L D 2005 Lahore 357
SHAKEEL SHAHID ‑‑‑Appellant Versus MUHAMMAD YOUNIS ZAHID and others‑‑‑Respondents
Court: ‑‑‑‑Ss. 14 as amended by Punjab Local Government Elections (Amendment) Ordinance (X of 2001), 12 & Preamble‑‑‑Punjab Local Government Elections Rules, 2003, R.70(2)‑‑‑Punjab Local Government Ordinance, (XIII of 2001), Ss.152(2) & 196(3)‑‑‑Local Government Elections Order Chief Executive Order No.8 of 2000, Preamble‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court appeal‑‑‑Election of Nazim and Naib Nazim‑‑‑Disqualification of Nazim by the Election Tribunal on account of being a defaulter of a financial Institution and also for his failure to declare his assets ‑‑‑Naib Nazim was also deseated on account of disqualification of the Nazim‑‑‑ Contentions of the appellant were that under S.14(2) of the Punjab Local Government Elections Ordinance, 2000 (as amended) read with S.152(2) of the Punjab Local Government Ordinance, 2001 the Nazim could be deseated only if the Chief Election Commissioner had found him guilty of contravening the provisions of S.14(1)(i)(j) of the Punjab Local Government Elections Ordinance, 2000 and therefore the Election Tribunal had no jurisdiction whosoever in the matter; that neither the Punjab Local Government Elections Ordinance, 2000 nor the Punjab Local Government Ordinance, 2001 provided for challenging the election of a Nazim or a Naib Nazim through election petition; that Punjab Local Government Elections Rules, 2000 providing for the filing of election petition and the constitution of Election Tribunals were therefore, ultra vires in the absence of substantive provision in the present legislation i.e. the Punjab Local Government Elections Ordinance, 2000 itself; that S.196(3), Punjab Local Government Ordinance, 2001 guaranteed the tenure of Nazim and Naib Nazim unless they resigned or were recalled or removed earlier, and that too under an. order, passed by the Chief Election Commissioner, accordingly R.70, Punjab Local Government Elections Rules, 2003 permitting the filing of election petition was inconsistent with the object and effect of S.196 of the Punjab. Local Government Ordinance, 2001 and that case of the appellant did not fall within the mischief of S.14(1)(i)(j) of Punjab Local Government Elections Rules, 2001‑‑‑Validity‑‑‑Held, provision of S.14(2), Punjab Local Government Elections Ordinance, 2003 did not purport to create an exclusive or overriding, remedy before the Chief Election Commissioner for the purpose of determining qualifications of candidates and elected members‑‑‑Nothing in the amended law existed that had curtailed or excluded the jurisdiction of Election Tribunals in matters that fell within the purview of the remedy before the Chief Election Commissioner under S.14(2), Punjab Local Government Elections Ordinance, 2000, thus the statutory intent was also to vest the Chief Election Commissioner with power to determine both pre‑election and post -election disputes regarding qualification/disqualification of candidates and same was meant to enlarge his jurisdiction without prejudice to the existing remedy‑‑‑By not prescribing procedure for S.14(2) proceedings, the legislature had conferred discretion upon the Chief Election Commissioner to adopt any suitable process and format of his proceedings so as to effectively perform his function of holding the Local Government Elections recognized by S.12, Punjab Local Government Elections Ordinance, 2000 and otherwise entrusted to him by constitutive law namely Local Government Elections Order C.E.O.No.8 of 2000‑‑ Strictly speaking judicial remedy before the Election Tribunal for the enforcement of the mandatory qualifications prescribed for elected members had a distinct purpose and effect in relation to post‑election disputes which is attracted where inquiry into facts was necessary and also where the scope of relief to annul the election as a whole or to a lesser extent had to be determined‑‑‑Jurisdiction of Election Tribunal, and the Chief Election Commissioner in post‑election disputes, although was concurrent, yet it did not mean that there was mutual contradiction between the two remedies, such conflict could arise, if the remedy before the Chief Election Commissioner was exclusive, which was not the position, nor could conflict occur even with reference to findings because there were settled principles to regulate the manner of exercise of concurrent jurisdictions in order to avoid inconsistency‑‑‑Since neither conflict nor prejudice in the present case had either been alleged or experienced by the parties on account of dispute being determined in accordance with law by a lawfully constituted Election Tribunal the point about the remedy under S.14(2) of Punjab Local Government Elections Ordinance, 2000 ousting the jurisdiction of the Election Tribunal was simply unfounded‑‑‑Appellant had never raised a challenge to the jurisdiction of Election Tribunal but participated in its proceedings heartily until their outcome against him both before the Tribunal as well as the Single Bench of the High Court‑‑‑Appellant, was therefore estopped on two counts from raising the objection about the Election Tribunal‑‑‑Election Tribunal, in the present case had considered the evidence on record carefully to arrive rightly at its finding of the appellant's disqualification on the grounds as alleged which had established the appellant's status as a wilful defaulter within the meaning of S.14(1)(i), Punjab Local Government Elections Ordinance, 2000‑‑ Principles.2002 Y L R 2318
ELAHI BAKHSH‑‑‑Petitioner Versus DISTRICT AND SESSIONS JUDGE, RAJANPUR WITH THE POWER OF ELECTION TRIBUNAL, D.G. KHAN‑‑‑Respondent
Court: LahoreP L D 2003 Lahore 12
Haji ALAM SHER and another‑‑‑Petitioners Versus Malik MUHAMMAD NAWAZ and 6 others‑‑‑Respondents
Court: ‑‑‑‑Ss.18‑A as added by Punjab Local Government Elections (Second Amendment) Ordinance (VII of 2000) & 16‑‑‑Punjab Local Government Elections Rules, 2000, R.18(3)‑‑‑Election of Nazim and Naib‑Nazim ‑‑‑ Post election educational disqualification of joint candidate‑‑‑Casual vacancy‑‑Principle of sinker‑‑‑Applicability‑‑‑Provision of S.18‑A, Punjab Local Government Elections Ordinance, 2000 saves the position of the joint candidate who was found to be qualified and notwithstanding the fact that the Nazim and the Naib‑Nazim contested elections as joint candidates pursuant to S.16, Punjab Local Government Elections Rules, 2000, the casual vacancy was to be filled in singularly in accordance with the spirit of S.18‑A, Punjab Local Government Elections Ordinance, 2000‑‑‑Principles.2006 Y L R 289
Mian MUHAMMAD HANIF TAHIR — Petitioner Versus CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD — Respondent
Court: Lahore2002 S C M R 398
ABBAS KHAN and another ‑‑‑Petitioners Versus APPELLATE AUTHORITY, DISTRICT AND SESSIONS. JUDGE, ATTOCK and others‑‑‑Respondents
Court: Supreme Court of Pakistan2002 Y L R 2101
MUHAMMAD IRSHAD‑‑‑Petitioner Versus CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD and another‑‑‑Respondents
Court: LahoreP L D 2009 Lahore 606
MUHAMMAD SAFDAR BUTT — Petitioner Versus ELECTION TRIBUNAL and others — Respondents
Court: High Court2002 Y L R 2094
MUHAMMAD JAHANGIR QAMAR ‑‑‑ Petitioner Versus DISTRICT JUDGE/ELECTION TRIBUNAL, PAKPATTAN SHARIF and 7 others‑‑‑Respondents
Court: Lahore2003 C L C 64
Sahibzada FAROOK ANWAR ABBASI and another‑‑‑Petitioners Versus APPELLATE AUTHORITY/DISTRICT AND SESSIONS JUDGE,
Court: Lahore2002 Y L R 2109
SOWAB GUL‑‑‑Petitioner Versus SARDAR MUHAMMAD and others‑‑‑Respondents
Court: Peshawar