' UMAR ATA BANDIAL, C.J.---This order shall also decide Writ Petitions Nos. 22040, 25848, 26380, 27900, 24243, 20787, 23527 and 25028 of 2013 involving common questions of law.
2. The aforementioned writ petitions have been heard by us on the vires of two provisions of the Punjab Local Government Act, 2013 ("PLGA").The first challenge is to the delimitation of Local Government constituencies to be done by the Provincial Government under sections 7 to 10 of the PLGA. The second challenge is made to the provisions of section 18 of the PLGA requiring election of members of local governments to be held on non-party basis.
3. With respect to power of delimitation of constituencies conferred on the Provincial Government, it is the case of the petitioners that Article 140A(2) of the Constitution of Pakistan ("Constitution") envisages election to the Local Governments to be held by the Election Commission of Pakistan ("ECP"). ECP has the authority under Article 219 of the Constitution to hold General Elections to the National Assembly, Provincial Assemblies and the Local Governments. Article 222(b) of the Constitution visualizes delimitation of constituencies for elections to be carried out by the ECP.
Therefore the delimitation of Local Government constituencies is claimed as a necessary arrangement to be made by the ECP to ensure honest, just, fair and lawful elections within the terms of Article 218(3) of the Constitution.
4. Learned counsel for the respondent Provincial Government have contended that the constitutional mandate under Article 140A(2) and Article 219(d) of the Constitution is for the ECP to "hold" election to the Local Governments. The stage of delimitation of constituencies is anterior to the process of holding of elections. There is no law by Parliament made pursuant to Article 222(b) of the Constitution that provides the framework for delimitation of Local Government constituencies by the ECP. The only law on the subject in the Province is the PLGA. This provides for the establishment and powers of Local Governments and is made in exercise of legislative competence under Article 142(c) and Article 140A(1) of the Constitution. With reference to history of statutory law in the matter of delimitation of Local Government constituencies, it is explained that such delimitation has always been a subject for action by Provincial Governments.
5. The second point of challenge is to section 18 of the PLGA that provides for non-party based elections for all Local Governments. The Province of Punjab is claimed to have a duty under Article 140A(1) of the Constitution to establish a Local Government system that devolves political, administrative and financial responsibility and authority to the elected representatives of Local Governments. Devolution of political responsibility and authority is claimed to involve the making of political decisions by both the electors and elected representatives of Local Governments. Under Article 7 of the Constitution, Local Governments as the third tier of the State are equally placed along with the Federal Government and the Provincial Governments. The establishment of Local Governments must therefore follow the same course that applies to the establishment of the Federal Government and the Provincial Governments through party based elections.
6. Article 17(2) of the. Constitution has been interpreted by the Hon'ble Supreme Court of Pakistan to include the right of political parties to contest elections and for the party enjoying majority in the House to form government. The said fundamental right under Article 17(2) read with Article 140A(1) of the Constitution creates an overriding constitutional obligation for the Provinces to hold party based elections for Local Governments. Section 1.8 of the PLGA is violative of such constitutional obligation.
7. The. Province of Punjab has opposed the said plea for party based elections for Local Governments on the ground that Article 17(2) of the Constitution is not applicable for the establishment of Local Governments. As statutory public authorities, Local Governments perform executive functions in connection with the affairs of the Province but discharge no legislative function. The elected Local Government representatives therefore fall within the definition of service of Pakistan under Article 260 of the Constitution. Article 17(2) of the Constitution confers, inter alia, political rights on citizens but denies these to persons in the service of Pakistan. Also the fundamental right under Article 17(2) allows citizen to form and or be a member of a political party but does not extend to the right to contest for or be elected to a public office which are matters dealt by statute. The PLGA has been competently legislated to confine the contest in direct elections to Local Government offices through non-party elections. The law laid down by the Hon'ble Supreme Court on General Elections is concerned with the Parliament and Provincial Assemblies and is therefore confined to elected Houses that exercise legislative functions. The Local Governments are statutory bodies exercising executive but not legislative functions. As the elected representatives of Local Governments are in the service of Pakistan therefore they are also under the rule of public service to remain neutral and non-political in the discharge of their functions. Since 1962 when Local Government was first introduced in Pakistan all elections to offices in such governments have been held on non-party basis without any challenge being made on the present grounds.
8. We have carefully deliberated and considered the submissions made by the learned counsel for both the sides.
9. Delimitation of Local Government Constituencies 9.1 Article 140A(2) and Article 219(d) of the Constitution contemplate the election to the Local Governments "to be held" by ECP. The delimitation of onstituencies and preparation of electoral rolls are inceptional steps meant to enable elections. Consistent authority treats such steps to be anterior to the holding/conduct of elections. The starting point of the election process is understood to be notification of the election schedule or program that follows after the said inceptional steps have been taken. Reference in this behalf is made to Muhammad Nazir Hakim v.
Bukhtiar Said Muhammad and the Controlling Authority Montgomery (PLD 1962 Lahore 421), Amirzada Khan MNA v. The Chief Election Commissioner and 2 others (PLD 1974 Lahore 178), Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), Khursheed Ahmed Junejo and others v. Government of Sindh and others (2005 MLD 1724(SHC), Surendrasinhaji Jorawarasinhji Jhala v. U.M. Bhatta, Chie Electoral O,t cer, Ahmedabad and others (AIR 1969 Gujarat 292) and Haji Muhammad Afzal and others v. Mian Miraj Din and others (PLD 1967 Lahore 689).
9.2 Article 222 of the Constitution.Provides for Parliament to make law on different subjects relating to elections. One such subject is the delimitation of constituencies by the ECP under Article 222(b) of the Constitution. No law has been framed by Parliament on the subject of delimitation of constituencies of Local Governments. The only law on this subject is the PLGA.
9.3 Item No,41 of the Federal, Legislative List in. The Constitution does not empower Parliament to .Frame laws in relation to Local Government elections. Such power is therefore vested in the Provincial Assembly pursuant to Article 142(c) of the Constitution. The PLGA is promulgated in exercise of said legislative power competently as valid law.
9.4 In exercise of power conferred by the PLGA the Provincial Government has framed Punjab Local Governments (Delimitation) Rules, 2013. In addition Guidelines for Delimitation Authorities have been issued by the Provincial Government on 29-8-2013 which address the different aspects of the delimitation process.
9.5. In the light of the constitutional provisions, statutory provision of PLGA and subordinate legislation made thereunder, we conclude that the Provincial Assembly of Punjab has lawful authority to legislate on the subject of delimitation of Local Government constituencies. The duty of the ECP .To "hold" elections to local governments does not include the process of delimitation of constituencies and therefore no constitutional mandate is violated by such process being carried out in accordance with law by the Provincial Government.
1.0. Non-party Based Local Government. Elections 10.1Article 140A of the Constitution was inserted by the Constitution (Eighteenth Amendment) Act, 2010. The significant feature of Article 140A of the Constitution is its command to devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments. The devolution of political responsibility and authority to the elected representatives necessarily involves the application of their political principles and values. The expression of such principles and values by citizens of the country has been guaranteed under Article 17(2) of the Constitution. The citizen's right to form or be a member of a political party extends to the party's right to contest and participate in elections: Mrs. Benazir Bhutto and another v. Federation of Pakistan etc. (PLD 1989 SC 66). Equally where a political party contests the election successfully, it has a fundamental right to form government provided it enjoys the requisite majority: (Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). As the third tier of government in the State, the Local Governments perform valuable public functions and exercise power to impose taxes; these institutions are accountable to the citizens of .The Province who are their electors under adult franchise. The fundamental right of political parties to contest election extends equally to all tiers of government, including Local Governments.
10.2. Local Governments derive their status from Articles 7, 32, and 140A of the Constitution. While these constitutional provisions permit provincial legislation on the subject of the Local Government system yet checks have been imposed on the power of the Provincial Legislature to guide such legislation. The Constitution commands to devolve political responsibility and authority to the elected representatives of Local Governments. Political responsibility and authority is exercised by elected representatives of the Local Governments by applying their political values and principles.
These define the political identity of the elected representatives. The denial of political identity of a candidate for a Local Government office by section 18 PLGA negates the obligation of the Province under Article 140A of the Constitution to devolve political authority and responsibility to elected representatives of Local Governments. Consequently, the non-party based, non-political election to Local Governments depriving candidates of their political identity is also inconsistent with the mandate of Article 140A (1) of the Constitution and must yield to that constitutional command: (Wattan Party through its President v. FOP and others (PLD 2006 SC 697) and Baz Muhammad Kakar and others v. FOP and others (PLD 2012 SC 870).
10.3 The fact that elected representatives of the Local Governments are not excluded from the definition of service of Pakistan under Article 260 of the Constitution does not mean that the candidates of political parties are barred from contesting elections for Local Government posts. At best, an elected representative of Local Government and not a candidate for such office is deprived of the right under Article 17(2) of the Constitution. There is no constitutional bar on a candidate of a political party from claiming a right under Article 17(2) of the Constitution to contest a Local Government election. It is an elected candidate who is under a duty to discharge his office and perform his functions in accordance with the PLGA, Rules and notifications framed thereunder.
However, that aspect of the matter is not relevant to the present controversy.
10.4 For elected representatives of Local Government to exercise political authority and to assume political responsibility as directed by Article 140A(1) of the Constitution, it is necessary for them to nurture political values and principles that guide their executive decision making. In making a choice of beneficiaries of their executive action and for fixing priorities in the enforcement of executive policy, elected representatives of the Local Governments exercise judgments that draw I on their political vision, values and principles. Without involving violation of any law or showing a leaning towards any party or its program, such evaluation draws upon the political mooring and roots of the elected representatives. The political party background of elected representatives provides and nourishes such roots. The above view assumes that all elected representatives of Local Governments exercise executive functions whereas infact executive authority of a Local Government institution is vested in and exercised by its Chairman or. Mayor, as the case may be.
(S.64(2) PLGA). As such the remaining elected representatives of Local Governments would fall outside Article 260 of the Constitution and may claim rights under Article 17(2) of the Constitution.
10.5 Significantly certain offices of Local Governments under the PLGA are not elected by adult franchise. The elected representatives of Union Councils, Metropolitan Corporation, Municipal Committee and Municipal Corporation constitute an electoral college for the post of Chairman and Vice-Chairman, Mayor and Deputy Mayor, as the case may be, of such Local Governments. The participation of elected representatives in the said indirect election involves the exercise of a political choice. Such choice can be exercised fairly, prudently, and transparently if the electors are imbued with a defined political vision, principles and values. The elected representatives having backing of political party would make their choice without being swayed by influence and other considerations.
11. In view of the foregoing observations, we hold that section 18 of the PLGA is inconsistent with the fundamental right under Article 17(2) of the Constitution of citizens and political parties to contest elections to the public posts in the Local Governments. Also non-party elections to offices in the Local Governments is inconsistent with the, command in Article 140A(1) of the Constitution.
12. As a result, section 18 of the PLGA is declared to be void under Article 8 of the Constitution.
13.Detailed judgment to be provided later. Announced in Open Court on 7-11-2013.
DETAILED REASONS ' Our judgment announced on 7-11-2013, which is reproduced above, contains the essential facts and summary of reasons for the two findings given by us in the context of local government election in the Province of Punjab that was to be held on 7-12-2013 under a schedule announced by the Election Commission of Pakistan ("ECP") on 6-11-2013. We rely upon the facts given therein and support our said findings with these detailed reasons.
2. Our first finding holds the Provincial Government to be competent under sections 7 to 10 of the PLGA to settle delimitation of local government constituencies. Our second finding declares section 18 of the PLGA to violate constitutional limitations by prohibiting candidates of political parties from contesting the scheduled local government election in the Province of Punjab.
3. The last local government elections in the Province were held on 25-8-2005. On expiry of the four year term of office of the elected local governments in the year 2009, the Provincial Government extended their 'tenure until 24-2-2010. Notwithstanding the lapse of nearly four years thereafter no local governments have been constituted in the Province because no election has since been held.
Instead civil servants are till date discharging the functions Of local government offices in the Province.
4. Meanwhile Constitutional Petition No,77 of 2010 titled President Balochistan Bar Association v.
Federation of Pakistan was being heard by the Hon'ble Supreme Court of Pakistan. This petition complains of injustice to citizen caused by weak governance in the Province of Balochistan. The Hon'ble Supreme Court observed an operative cause for the said condition to be the lack of local governments in the Province of Balochistan. Local governments were also found absent in the other Provinces and the Cantonment Boards. Accordingly, directions were issued by the Hon'ble Supreme Court to the Federal Government and all Provincial Governments. In the said proceedings the Government of Punjab made a commitment before the Hon'ble Supreme Court noted in its orders dated 25-10-2013 and 5-.11-2013 that the local government election in the Province shall be held on or before 14-12-2013.
5. Based on the directives given by the Hon'ble Supreme Court in its afore-noted orders, on 6-11- 2013 the ECP issued the schedule for local government elections in the Province of Punjab according to which the poll was to be held on 7-12-2013. These local government elections were going to be held in the Province for the first time since 2005 after a lapse of eight long years.
Accordingly, the constitutional right of the people under Article 7, 32, 37(i) and 140A of the Constitution, to have local government in the Province, was enforced by order of the Hon'ble Supreme Court of Pakistan pursuant to a commitment made by the Provincial Government. As a result the ECP issued its said election schedule dated 6-11-2013. We kept the foregoing factual background in view whilst hearing the present petition and refrained from interfering with the election process unless strong legal grounds were shown. This means grounds based on express or settled law to sustain the challenges made by the petitioners to the vires of the PLGA.
Delimitation of Local Government Constituencies 6.Ever since the introduction of local government institutions in Pakistan through the Basic Democracies Order, 1959 ("BDO, 1959") the delimitation of local governments constituencies has under successive laws always been done by the Provincial Government. These laws include the Punjab Local Government Act 1975, Punjab Local Government Ordinance, 1979 and closer to the facts of the present case the Punjab Local Government Ordinance, 2001 ("PLGO, 2001"). Section 6 of the PLGO, 2001 (now repealed) conferred delimitation authority upon the Provincial Government but by its section 150, the said statute entrusted the ECP with the duty to conduct local government elections in the Province of Punjab. Two local government elections were held in the Province under the said law in the years 2001 and 2005. The exclusion of the delimitation of constituencies from the charge of the ECP survived without change or interference through these elections. Plausibly the said arrangement was consistent with the charter and obligations of the ECP given in Part-VIII of the Constitution.
7.Article 140A was inserted in the Constitution through the Constitution (Eighteenth Amendment)
Act, 2010 ("Eighteenth Amendment"). A salient feature of the Eighteenth Amendment is that it omitted the Concurrent Legislative List in the Fourth Schedule to the Constitution, thereby expanding the scope of legislative and executive authority of the Provinces. Under Article 142(a) read with Item No,2 of the Federal Legislative List in the Fourth Schedule to the Constitution, the Federation has legislative and executive competence in the matter of "local self-government in cantonment areas". With respect to local government in the Provinces and its constitutive elections, the legislative and executive competence rests solely with the Provinces. In the light thereof, Article 140A of the Constitution converts the State's obligation to elect local governments in the Provinces that was hitherto expressed in statute into a constitutional mandate. Article 140A of the Constitution reads as follows:-- "140A. Local Government (1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial 'responsibility and authority to the elected representatives of the local governments.
(2) Elections to the local governments shall be held by the Election Commission of Pakistan."
8. Article 140A(1) is new in specifying the type of governmental responsibility and authority that must devolve to elected representatives of local government. This aspect is dealt with later in these detailed reasons. Article 140(2) of the Constitution gives constitutional status to the role of the ECP to "hold local government election" in the Provinces. Previously the ECP's role was a statutory requirement in the PLGO 2001. To reinforce the command about the. ECP given in Article 140A(2) of the Constitution, the Eighteenth Amendment has also enlarged the scope of Article 219(d) of the Constitution as follows:-- "219. Duties of (Commission).---The (Commission) shall be charged with the duty of---- (a)
(b)
(c)
(d) the holding of general elections to the National Assembly, Provincial Assemblies and the local governments; and
9. Clearly Article 140A(2) and Article 219(d) of the Constitution obligate the ECP to hold local government election in the Provinces. However neither provision specifies the extent and scope of ECP involvement in the process of holding such election. Article 222 of the Constitution is instructive for identifying the different stages in the election process, including the extent and scope of ECP authority therein, about which statutory law is to supply detail. However, Article 222 has not been amended to apply to local government elections. Nevertheless the said Article is relevant for appreciating the different facets of the election process that may be settled by statutory law. It reads as under:-- "222. Electoral laws.---Subject to the Constitution, (Majlis-eShoora (Parliament)) may by law provide for -
(a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51;
(b) the delimitation of constituencies by the Election Commission;
(c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls;
(d) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with elections;
(e) matters relating to corrupt practices and other offences in connection with elections; and
(f) all other matters necessary for the due constitution of the two Houses and the Provincial Assemblies; but no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or an Election Commission under this Part."
10. The Constitution does not lay down fixed criteria about the different election stages that are specified in clauses (a) to (e) of Article 222. It leaves these matters open for regulation by Federal law without prejudice to constitutionally assured powers and authority of the ECP or the Chief Election Commissioner ("CEC"). It may be noted that notwithstanding detailed Federal legislation regarding election to Parliament and Provincial Assemblies, Article 222(0 of the Constitution has not been amended to include local government elections within its ambit. Thus the Constitution does not in the case of local government election obligate the Provinces to adopt the legal framework of Federal laws established under Article 222 of the Constitution. Article 222 is consistent with the Y scheme of Provincial autonomy under the Constitution by keeping local government as an exclusively provincial subject. Therefore, local government election is also a matter to be dealt with and decided solely by the Provinces. The role of the ECP in holding such election may have invited Federal legislation because Item No,41 of the Federal Legislative List, Fourth Schedule to the Constitution contains the subject of "Chief Election Commissioner and Election Commission".
Notwithstanding its competence to elaborate upon the reservation contained in Article 222 regarding ECP powers, Parliament has not made any law to lend guidance to the Provinces on the role of ECP in local government elections. This means that the scope of ECP powers and duties during local government elections has been left to the decision of the Provinces to be taken in the light of their respective conditions. It is a matter of record that all four provinces have given the power and function of delimiting their local government constituencies to their respective provincial governments.
11.The responsibility of the ECP to hold local government election and of the provincial government to delimit local government constituencies is a feature shared by the PLGO 2001. Section 150 of the PLGO 2001 provided for local government election in the Province to be conducted by the ECP in the following terms:--
150. Election Commission to conduct local government elections.---(1) The Election Commission shall conduct the local government elections.
(2) In this Ordinance, "Election Commission" means the Election Commission constituted under Article 218 of the Constitution of the Islamic Republic cf Pakistan."
12. Notwithstanding the function of conducting local government elections being given to the ECP, section 6 of the PLGO 2001 reserved the power of delimitation of local government units to the Provincial Government as follows:--
6. Delimitation of Unions.----A Union shall be an area comprising one or more muazaiaat or, in the case of an area where revision of settlement under the law has not been taken, one or more census villages or, in the case of an area with urban characteristics, a whole number of population census blocks as delimited for the purpose of last preceding census or a combination of whole number of census blocks and a whole number of muazaiaat, notified as such by the Government: ' Provided that, as far as may be,-- (a)' the area of a Union shall be a territorial unity;
(b) the boundaries of a Union'shall not cross the limits of a tehsil, or a town in a city district;
(c) the area of a union in a tehsil shall comprise a whole number of patwar circles, or a patwar circle may contain a number of whole Unions;
(d) the area of a Union in a City District, or a Union with urban characteristics. Shall comprise a whole number of census blocks as delimited for the purpose of the preceding population census or a whole number of muazaiaat or a combination of a whole number of census blocks and muazaiaat; and
(e) the population of Unions within a district shall, more or less, be uniform: ' Provided further that in a specific case, the Government may, for the reasons to be recorded, waive the aforesaid conditions.
7. Delimitation of tehsils and districts.----The. Government shall, by notification in the official Gazette, declare tehsils and districts notified under the Punjab Land Revenue Act, 1967 (W.P.Act. XVII of 1967), to be tehsils or, as the case may he, districts under this Ordinance."
13. Two local government elections Were held by the ECP under the PLGO 2001, in the years 2001 and 2005. It may be noted that the exclusion of the delimitation of the local government constituencies from the purview of ECP has neither been interfered judicially nor modified by legislation through the course of two local government elections. This affirms the harmony of PLGO 2001 with constitutional mandates. The present dispensation made under Article 140A(2) of the Constitution read with Article 219(d) of the Constitution, therefore, reiterates existing law empowering ECP to hold and conduct local government elections. Whilst rejecting the contention that fresh delimitation could dislodge an elected Zilla Nazim under PLGO 2001, the Hon'ble Sindh High Court made the following observations about the nature and effect of the delimitation process in Khursheed Ahmed Junejo and others v. Government of Sindh and others (2005 MLD 1724);-- "In the context of election it is a process aimed at determining the constituency with regard to the electorate and involves a complete procedure. This exercise is to be undertaken prior to holding of elections in case involving variation of boundaries of different constituencies and the determination thereof. Mere fact of delimitation of a constituency ipso facto does not have the effect of dislodging any elected representative of the area from his office position. The exercise is solely carried on for the purposes of the next/subsequent elections. However, as the delimitation of a District coincides with the territorial boundaries of a District as well there is no necessity of inviting objections before delimitation, likewise the exercise of physical determination of the boundaries is not required and the object is achieved merely by issue of a notification as envisaged under section 7 of the Ordinance 2001." (emphasis supplied)
14. Article 222(b) of the Constitution visualizes the ECP to carry out delimitation of constituencies under an enabling law to be framed by Parliament. No such law has been framed. One would have to read an omission in the Constitution to consider that Article 222(b) applies to local government elections in the Provinces. While that would be farfetched, the absence of Federal legislation on the subject cannot be deemed by implication to invest the ECP with the duty and role of delimiting the local government constituencies.
15. The Constitution is an organic and living document which this Court is under a duty to interpret as a whole. The underlying feature of the Eighteenth Amendment, including the meaning and effect of Article 140A of the Constitution incorporated thereunder, is the enlargement of the legislative and executive powers and authority of the Provinces under the Constitution. In other words new powers and authority have been devolved from the Federation to the Provinces. In the present context these include the ability of each province to choose the appropriate mode in which the local government election process, including the pre-election stage of preparation of electoral rolls and the delimitation of constituencies of local governments, should take place. We read the presently impugned provisions of PLGA as an expression of Provincial autonomy conferred by the Constitution and as representing the conscious exercise of its legislative and executive authority.
These actions do not conflict with any express or implied obligation cast by the Constitution. To our minds, therefore, the Province of Punjab has consistently with the constitutional mandate defined a specific role for the ECP in the local government election. In so doing, it has limited the function of the ECP to the stages covered by the election schedule issued by the ECP. Provisions of section 19 of the PLGA is reproduced below:-- "19. Election Commission to conduct elections.---(1) The Election Commission shall conduct the local government elections and for the purpose, shall, by notification in the official. Gazette, declare the election schedule for election under this Act.
(2) The Election Commission may by order in the official Gazette, make provisions for the conduct of local government elections if no provisions or no sufficient provisions have been made under this Act or the rules."
15. Delimitation provisions under the PLGA given in sections 7 to 10 are also reproduced below:-- "7. Division and reconstitution of a local government.--- (1) The Government may, by notification in the official Gazette, divide a local government into two or more local governments or reconstitute two or more local governments as one local government or alter the limits of a local government and may specify in the notification the consequences which shall follow the publication of such notification.
(2) When as a result of such division or reconstitution, any new local government is constituted, in accordance with the provisions of this Act in the manner specified in the notification:
(a) the existing members of any local government so divided or reconstituted shall become the members of such local government as the Government may, by notification, specify as if each such member had been elected to that local government; and
(b) such local government shall, to the extent and in the manner specified in the notification, be the successor of the local government so divided or reconstituted.
8. Delimitation of Union Councils.---(1) A Union Council shall be an area consisting of one or more revenue estates or, in the case of an area where revision of settlement under the law has not taken place, one or more census villages or, in the case of an urban area, a census block or blocks as delimited for purposes of the last preceding census or a census block and a revenue estate, notified as such by the Government.
(2) As far as possible:
(a) the area of a Union Council shall be a territorial unity;
(b) the boundaries of a Union Council shall not cross the limits of the Metropolitan Corporation, a Municipal Corporation, a District Council; and
(c) the population of Union Councils within a local government shall be uniform.
(3) The government shall, in the prescribed manner, delimit a Union Council into six wards for the election of members on general seats and into two wards, consisting of three adjoining wards of the Union Council, for the election of the two seats reserved for women.
(4) A ward shall, as far as possible, consist of a part of a village, one or more adjoining villages and, in case of an urban area, a part of a census block, census block or adjoining census blocks and, as far as possible, the population of wards shall be uniform.
9. Delimitation of wards in Municipal Committees.---(1) The Government shall, in the prescribed manner, delimit a Municipal Committee into wards for election of members of the Municipal Committee on general seats.
(2) For purposes of delimitation of a Municipal Committee, a ward shall, as far as possible, consist of a part of a census block, a ,census block or adjoining census. Blocks and the population of wards within a Municipal Committee shall be uniform.
10. Waiver of conditions.---The Government may, in a specific case and for reasons to be recorded in- writing, waive the conditions of delimitation mentioned in section 8.
' 10A. Finality of delimitation.---A court, officer or authority shall not review or correct any delimitation of a Union Council or ward after the notification of the election schedule."
17. The said framework for delimitation of local government constituencies is elaborated in the Punjab Local Governments (Delimitation) Rules, 2013 which sets out detailed criteria of delimitation and provides a dispute resolution procedure for objectors. Thereafter the Provincial Government has issued Guidelines for Delimitation of Union Council and Wards of Municipal Committees.
Paragraph-2 of the Guidelines specify as under:-- "The foremost principle for delimitation of Union Councils and the wards in a Municipal Committee is to have regard to the equal distribution of population, geographical compactness, existing boundaries of administrative units, facility of communications and public convenience."
18.In addition hierarchy of delimitation authorities is laid down with particularity.
19.In the presence of the said statutory Rules and Guidelines it is obvious that the Provincial Government has applied its mind to the relevant criteria of the delimitation process. We do not have the facts of any particular case before us to judge whether the machinery for delimitation of constituencies established by the Provincial government is faulty or deficient. This is because the challenge before us is solely to the. Vires of the PLGA. With subordinate legislation taking considerable pains to settle the criteria and parameters of delimitation of constituencies, it is neither alleged nor do we find the provincial regulatory framework for delimitation of local government constituencies be ex facie contrary to the Constitution and the law. It would be hasty and presumptuous to label without evidence the settled procedure as constitutionally invalid.
20.The foregoing discussions bring us to another point raised by the petitioners. The expression "shall be held by the Election Commission of Pakistan" used in Article 140A(2) of the Constitution is contended to import the ECP powers conferred by Article 218(3) of the Constitution. Article 218(3) obligates the ECP to, organize and conduct the election and to make arrangements for ensuring that it is conducted fairly. Therefore, it is argued that the stage of delimitation of constituencies occurring prior to the election events covered by an election schedule, must also be conducted by the ECP. To appreciate the objection the provisions of Article 218(3) of the Constitution are reproduced below:-
218. (1)............................
(2)
(3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the elation is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against." (emphasis supplied)
21. It may be noticed that according to Article 218(3) the function of the ECP is "to ensure that the election is conducted honestly, justly, fairly and in accordance with law and free of corrupt practices". The key word in both Article 140A(2) and Article 218(3) of the Constitution is "election".
What is the meaning of election in the context of the said two provisions? The said term is not defined in the Constitution. Indeed from the language of Article 218(3) it can be gathered that unless safeguarded an election and its result may be tarnished by dishonesty, injustice, unfairness, illegality and corrupt practices. Therefore, it is crucial to understand the meaning of the word "election" as used in Article 218(3) or elsewhere in the Constitution so that ECP may safeguard such an election process from the aforementioned ills.
22. The word "election" is used at several places in Part VIII of the Constitution. It has received judicial consideration in different contexts in relation to the election process. To appreciate the ordinary meaning ascribed to the said word reference is firstly made to Amirzada Khan v. Chief Election Commissioner (PLD 1974 Lahore 178):- "Generally speaking election is a process which starts with the issuance of the election programme and consists of various links and stages in that behalf, as for example, filing of the nomination papers, their scrutiny, the hearing of objections and the holding of the actual polls etc. Etc. If any of these links is challenged it really tantamounts to challenging the said (process of) election. What cannot be allowed to be done directly, cannot be allowed to be done indirectly on the basis of the type of pleas which are being advanced before us. We cannot accept that whereas on one hand the Constituent Assembly intended to stop raising of objections to the election of the President in clause (6) of Article 41, on the other hand it had the desire to allow the same thing to be done in the form of the petitions of present kind in Courts. It is well settled that the right to challenge an election or to put it in other words the right of franchise is not a common law right and is to be regulated by the law which creates or deals with it."
23. The above statement of law defines election to represent the stages that form part of the election schedule. The same view has been taken by this Court in Haji Muhammad Afzal and others v. Miraj Din and others (PLD 1967 Lahore 689) wherein the following meaning has been assigned to the word "election".
"It is well settled that election is a continuous process consisting of a series of facts required to be done in different stages in accordance with the schedule contained in the notification to be published in the Official Gazette fixing dates for filing of nomination papers, scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of result, etc."
23. Whilst interpreting Article 225 of the Constitution. The Hon'ble Supreme Court considered the existing law on the meaning of word "election". In the case of Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396) it expounded the different stages and acts of the election process that fell within the ambit of the term "election" and therefore became immune from challenge except before an Election Tribunal. The relevant discussion is as follows:-- "In Election Commission of India v. Shivaji AIR 1988 SC 61 it was held that the word "election" was used in a wide sense to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Article 329(b) of the Constitution. It reaffirmed the meaning of the word "election" as stated in N.P. Ponnuswami's case. Thus in its wide sense the word "election" has been appropriately used in the Article with reference to the entire process consisting of several steps taken for its completion which have a bearing on the result of the process.
' Now the next important matter is as to what meaning should be given to the words "No election shall be called in question".
In enacting Article 225 in the Constitution the purpose of Legislature is obvious that it did not contemplate two attacks on matters connected with the election proceedings; one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199, and another when the election has reached the stage of completion by means of an election petition Again the words "except by an election petition" in Article 225 of the Constitution do not refer to the period when it can be called in question but point to the manner and the mode in which it can be called in question. It is, therefore, that the constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election. Commissioner and thus to exclude or oust the jurisdiction of all Courts in regard to election matters, and to prescribe only one mode of challenge. The purpose is not far to seek as in all democratic Constitutions such as is ours the Legislatures have an important role to play, and, therefore, it is of utmost importance that the election should be held as scheduled without being unduly delayed or prolonged by challenging matters at an intermediate stage.
' The, Act comprehended by Article 225 is comprehensive in all respects. Section 52 of the Act provides for the challenge of an election through an election petition. This section is also expressed in the negative form to exclude jurisdiction of all Courts in matters of elections except as provided.
Section 68 relates to the ground for declaring the election of a returned candidate void, section 69 deals with the ground for declaring a person other than a returned candidate elected, section 70 prescribes the ground .For declaring election as a whole void and the Act further provides for an appeal against the order of the Tribunal and other procedural provisions relating to the withdrawal of the petition, the abatement on the death of the petitioner, the death or withdrawal of the respondent from the proceedings and failure of the petitioner to prosecute the petition. Besides, it defines corrupt practice (section 78), undue influence (section 81), penalty for corrupt practice (section 82) and illegal practice and its punishment (section 83) and all other steps which are to be taken in connection with the holding of an election and other ancillary matters. Section 105 of the Act bars the jurisdiction of the. Courts to question the legality of any action taken in good faith by or under the authority of the Commission, the Commissioner, a Returning Officer, Presiding Officer or an Assistant Presiding Officer or any decision given by any of them or any other officer or authority appointed under this Act or the rules. In a nutshell it is a self-contained enactment and the various steps taken in the process of the completion of the election as provided by the enactment are comprehended within the meaning of the word "election", and if it be the case whether an action falls within its ambit or not it can be tested on this touchstone." (emphasis supplied)
25. The above quoted precedents, including most importantly, the view expressed by the Hon'ble Supreme Court of Pakistan consider the stages of the election process that are challengeable before an Election Tribunal to constitute "election" within the meaning of Article 225. These are the stages or events that form part of the election schedule to constitute the "election". It is the propriety of action taken in these stages that can be scrutinized by an Election Tribunal. It is an established point that the stage of delimitation of constituencies occurs prior to and is altogether distinct from the election process that is announced in an election programme. Nor is it a stage that is amenable to the jurisdiction of an Election Tribunal as envisaged by the Constitution and by the Hon'ble Supreme Court in Hashmi's case. The said view finds support from the recent pronouncement of the Hon'ble Supreme Court about the constitutionally entrenched powers of the ECP. In Worker's Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v.
Federation of Pakistan and 2 others (PLD 2012 SC 681) the Hon'ble Supreme Court outlines the following stages of the election process that are subject to the constitutional powers of the ECP:-- "A bare reading of Article 218(3) makes it clear that the Election Commission is charged with the duty to "organize" and "conduct the election". The language of the Article implies that the Election Commission is responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. By conferring such responsibility on the Election Commission, the Constitution ensures that all activities both prior, on and subsequent to Election Day, that are carried out in anticipation thereof, adhere to standards of justness and fairness, are honest, in accordance with law and free from corrupt practices. This Court in Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), observed that "generally speaking election is a process which starts with the issuance of the election programme and consists of the various links and stages in that behalf, as for example, filing of nomination papers, their scrutiny, the hearing of objections and the holding of actual polls. If any of these links is challenged it really (is) tantamount to challenging the said process of election". It interpreted that the phrase 'conduct the election' as having "wide import" and including all stages involved in the election process. These observations subject all election related activities that take place between the commencement and the end of the election process to the jurisdiction conferred on the Election. Commission under ' Article 218(3). The Election Commission therefore has to test all election related activities that are carried out in the relevant period, both individually and collectively, against the standards enumerated therein." (emphasis supplied)
26. Consequently, in the absence of any contrary intention expressed in Article 140A(2) and Article 219(d) of the Constitution, it is fair and reasonable to construe the expression "election" to bear the meaning attached to it in other provisions of Part VIII of the Constitution which includes Article 218 and Article 225. As a result, the delimitation of local government constituencies cannot be deemed to fall within the R election process conducted by the ECP. To bring it within the ambit of such process would require enabling legislation by Parliament under Item 41 of the Federal Legislative List or by the Punjab Provincial Assembly as part of the PLGA. Neither legislature has made such law. For the petitioners' plea to succeed the impugned Provincial legislation would have to be struck down without the promulgation of enabling law or violating any express mandate of the Constitution. Such action would defeat the exercise by the Province of its legislative and executive autonomy expressly conferred by the Constitution; would offend settled constitutional interpretation regarding delimitation of local government constituencies prevalent since 1959; would overlook the unchallenged PLGO 2001 wherein ECP was denied said role in two local government elections. The statutory provision made in the PLGA, supported by the subordinate statutory instruments, contains a detailed mechanism for the delimitation process to be conducted by the provincial authorities. To our S minds, no violation of any constitutional mandate or reservation is committed by the said arrangement.
27. Reverting to the point dealt with by us at the start of this opinion. Nearly four years have elapsed without any local government being constituted in the Province. If at all, Article 140A(2) of the Constitution casts a heavy duty on the provincial governments to establish elected local governments according to law by which political, administrative and financial responsibility and authority is devolved to such governments in a manner and to the extent that is envisaged by the Constitution. We have been informed by the learned Addl. Advocate General that there are elections in 55852 electoral units in the rural and ,,,urban areas of the local government system in the Province of Punjab. For the same population and territory there are only 397 elected seats in the Provincial Assembly of Punjab. The number of local government electoral units are 180 times the number of the provincial assembly seats for the same population. Delimitation of such local government electoral units would involve much greater effort and attention of the ECP than for provincial assembly seats. To say the least fresh delimitation by the ECP would be time consuming and would delay the formation of local governments in the Province for long. The spirit of orders by the Hon'ble Supreme Court in Constitutional Petition No,77 of 2010 would be undermined thereby.
The above mentioned figures about the size of constituencies also show that the limits of an average local government constituency is about half percent the size of a Provincial Assembly constituency. This would indicate that a grievance about delimitation of a local government constituency concerns a much sma ller unit about which the objections raised involve minute details. Quite plausibly the best solution to a delimitation grievance would be available at the local level. Also such grievances would be minimized by conforming administrative boundaries. In such circumstances perhaps according to Khurshid Ahmad Junejo's, case the delimitation process would become unobjectionable. Neither the insufficiency of the existing ground rules for delimitation of constituencies nor the inadequacy of its existing dispute resolution mechanism have been addressed by the petitioners. Therefore these are matters which will have to be dealt with in other suitable proceedings.
28. The foregoing are our detailed reasons on the issue of delimitation of local government constituencies.
Non-party based Local Government Elections
29. A number of principles derived from the Constitution and elaborated in pronouncements by, the Hon'ble Supreme Court have been applied to render our aforementioned finding that political parties cannot be excluded from putting up their candidates in local government T elections. The crucial basis of the said finding is derived from Article 140A of the Constitution. To facilitate understanding, this provision is again reproduced below: 140A. Local Government.---Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.
(2) Elections to the local governments shall be held by the Election Commission of Pakistan.
30. Article 140A(1) of the Constitution has the following important features:--
(i) It visualizes provincial law to establish a local government system;
(ii) Such provincial law must devolve "political, administrative and financial responsibility and authority" to the local governments;
(iii) These local governments must be run by elected representatives.
31. Article 7 of the Constitution defines local government as the third tier of government in the State.
In Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others (2013 SCMR 1629 at page 1640) the Hon'ble Supreme Court read Article 140A(1) as under:-- "15. In general, this tier of government is responsible for decision-making in those policy areas which have a direct impact on the lives of local citizens, e.g. Urban regeneration, housing, schools, employment and social security, health, arts, culture and sport, local public transport, water and, energy, and regional planning. These are the areas where the local citizens must have the opportunity to exert direct influence on policy-makers and thus participate in the decision-making process. Thus, local self-government not only has a legal and a political dimension, but it also has sociological connotations, namely, it directly affects community life within a demarcated locality. It is pertinent to mention here that in the developed democracies, local self-government has contributed substantially to social and economic development and the emergence of a civil society and its importance for democratic development has been recognized consistently all over the world.
16. It is important to bear in mind that local government is the most vital element in a democracy, though not generally recognized as such. Existence of local bodies is important for strengthening the process of democracy. In the recent years, local self-government has been playing a vital role in the establishment of good governance and community development. The local bodies, at one end, provide services to the local community and, on the other, act as an instrument of democratic self-government. The existence of local self-government provides mechanism for the enforcement of Fundamental Rights of the people. Such government bodies are helpful for development including education, health, social services as well as in improving law and order situation. In short, the local self-government is necessary not only for strengthening democracy in country but also for securing good governance, which is essential to ensure the welfare of the citizens. This tier of government is always appreciated by the general public because it remains within their approach, as such they get involved in the decision making process. (emphasis supplied)
32. The Local Governments are a vehicle for citizen to influence policy makers in their decision making process. The existence of local government has political, legal and sociological dimensions that operate to strengthen democracy and also good governance. As such local government embodies a dynamic and responsive institution having capacity to attend and answer the needs and aspiration of the people. It is therefore not a bureaucracy implementing policy but an organ that influences and guides governmental policy to improve governance.
33. According to the terms of Article 140A(1) of the Constitution the establishment of local government must involve the 'devolution' of three kinds of "responsibility and authority" from the Provincial Government to Local Governments. This pertains to the devolution of political, administrative and financial powers.
The word "devo lve " means: "(1) To transfer (rights, duties, or powers) to another.
(2) To pass (rights, duties or powers) by transmission or succession. (Black's Law Dictionary, Seventh Edition)
(Black'sLaw Dictionary, Seventh Edition)
(1) Transfer or delegate (power) to a lower level, especially from central government to local or regional administration.
(2) (devolve on/upon/to) (of duties or responsibility) pass to (a body or person at a lower level)
(Concise Oxford English Dictionary, Eleventh Edition)"
34. In the light of the dicta in Rabnawaz's case, the exercise of devolved responsibility and authority by elected representatives of local government cannot be done mechanically as an extension of the provincial government but consciously as elected governments responsive to the problems and needs of people at the local and grass root level. To our minds discharge of such functions envisaged in the Constitution under a local government system requires the elected representatives of local government to apply their minds according to their political consciousness to meet the needs and requirements of the electors. For effective democracy and good governance visualized in Rabnawaz's case, it is necessary that the elected representatives must be allowed to nurture, express and apply their political consciousness and principles in their decision making.
35. The respondents have objected to the maintainability of the present petition on the ground that this Court may exercise its power of judicial review of legislation where the impugned law violates any Fundamental Right conferred by the Constitution. As provided in Article 8 a law offensive to Fundamental Rights is void. However, no Fundamental Right can be claimed by the petitioners. In the present case. This objection has two elements: firstly, that Article 140A of the Constitution is not a fundamental right and its violation cannot become a basis for striking down the offensive provision, namely, Section 18 of the PLGA. Secondly, that Article 17(2) of the Constitution is not available to the petitioners in the present case because they are political parties and not citizen of the State. In this context, it is further highlighted that elected representatives of local governments are discharging executive functions and are therefore in the service of Pakistan as defined by Article 260 of the Constitution. This definition includes any service, post or office in connection with the affairs of a Province to mean service of Pakistan. Article 17(2) of the Constitution specifically excludes a person in the service of Pakistan from enjoying the right to form or be a member of a political party. It is appropriate at this juncture to reproduce the provisions of the impugned section 18 of the PLGA:-- "18. Franchise and non-party based election.---Save as otherwise provided, election of members of all local governments shall be held on non-party basis, through secret ballot on the basis of adult franchise in such manner as may be prescribed."
36. Section 18 of the PLGA denies political identity to the elected representatives of local government. It is a misnomer that a person without a political identity and moorings can meaningfully discharge political responsibility and authority. Without such identity the capacity of an elected representative to assess and express political preferences for policy making and executive action is greatly impaired. Section 18 of the PLGA is contrary to the provisions of Article 140A of the Constitution in curtailing the right of political expression of elected representatives of local government in discharge of their official responsibility and authority. The said provision conflicts with the obligation under Article 140A(1) of the Constitution to devolve political responsibility and authority to elected representatives of local governments. The conflict of a sub- constitutional law with a constitutional provision has been ruled in Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, z Islamabad and others (PLD 2006 SC 697 at page 731) leads to the voidness of the former. The Hon'ble Supreme Court explained that inconsistency of, legislation with different constitutional provisions is visited with the same consequence. It is observed as follows:-- "Article 8 of the Constitution grants the power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights. However, at the same time this Court is empowered to declare any legislation contrary to the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance, 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. Reference may be made to the case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held that judicial power means that the superior courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its relation to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as a supreme law and any law contrary to it or its provisions is to be struck down by the Court, as the duty and the function of the Court is to enforce the Constitution."
' The principle enunciated above has been reiterated succinctly by Hon'ble Supreme Court in Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice Islamabad and others (PLD 2012 SC 870 at page 887) as follows:-- "The judiciary has never claimed supremacy over. Other organs of the State. However, it has a duty to interpret the Constitution and law as well as to examine the constitutionality of any law if it is concluded that it has been promulgated in derogation of the Fundamental Rights as envisaged by Article 8 of the Constitution, or where any of the provision of any law is found contrary to the Constitution."
37. Turning now to the second objection regarding the non maintainability of a claim by political parties to Fundamental Rights under Article 17(2) of the Constitution. It is true that the Fundamental Right under Article 17 of the Constitution is assured to citizens and not expressly to political parties.
However, Article 17(2) of the Constitution is unique in specifically granting to the citizen the right to form or be a member of a political party as against merely the right to be member of an association. There are two cases in Pakistan's judicial history where the Hon'ble Supreme Court has extended the Fundamental Right under Article 17(2) of the Constitution to political parties of which a citizen is a member. The first case is titled Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). This judgment has subsequently been explained and the principle laid down therein elaborated in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473 at page 558) in the following terms:-- "Actually, the objection being raised by the learned counsel for the respondents before us here stands practically answered already in Benazir Bhutto's case PLD 1988 SC 416. It was herein, inter alia, also observed:- "Reading Article 17(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as political party ... ... Again, the forming of a political party necessarily implies the right of carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words, the functioning is implicit in the formation of the party" (see page 511 of the Report).
' In a subsequent passage (at page 541) this aspect was commented upon as follows:-- "It (Article 17(2)) provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governance of Pakistan through political activity relating thereto."
(Emphasis supplied).
' Thus, in the scheme of our Constitution, the guarantee "to form a political party" must be, deemed to comprise also the right by that political party to form the Government, wherever the said political party possesses .The requisite majority in the Assembly. As was explained by Chief Justice Muhammad Haleem in the same judgment:-- "Our Constitution is of the pattern of parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority It is a party system that converts the results of a Parliamentary election into a Government".
' Accordingly, the basic right "to form or be a member of a political party" conferred by Article 17(2) comprises the right of that political party not only to form a political party, contest elections under its banner but also, after successfully contesting the elections, the right to form the Government if its members, elected to that body, are in possession of the requisite majority. The Government of the political party so formed must implement the programme of the political party which the electorate has mandated it to carry into effect. Any unlawful order which results in frustrating this activity, by removing it from office before the completion of its normal tenure would, therefore, constitute an infringement of this Fundamental Right.
' In this connection, the interpretation of the word "operating" in Article 17(2) given by my learned brother Shafiur Rahman, J. Further clarifies this aspect of the matter. He has rightly pointed out that the term "operating" includes both healthy and unhealthy operation of a political party. While Article 17 contains limitations and checks against unhealthy operation of the political party; no provision exists therein in relation to its healthy operation. However, the mere omission to make any specific provision in regard to this aspect does not imply that Fundamental Right 17 does not also comprise this aspect of the matter. Indeed, a positive right implies, as part of the same right, a negative right and vice a verse (see the views of Jeckson, J. For the majority and Murphy, J.
Concurring in West Virginia State Board of Education v. Barnette (1942) 319 U.S.
624. Hence, if the lawful functioning of a Government of political party is frustrated (by its dismissal) by an unlawful order, such an order is an impediment in the healthy functioning of the political party and would, therefore, constitute an infringement of the fundamental right conferred by Article 17(2). A petition under Article 184(3) for its enforcement would, accordingly, be maintainable.
' In this view of the matter, the submission of the learned Attorney General that rights guaranteed under Article 17(2) extend only to the right to form a political party and the right to become a member of a political party or for that matter the submission of Mr. S.M. Zafar that the right guaranteed under Article 17(2) extends only to all the political processes culminating in the election of its member to the National Assembly and no more cannot therefore be accepted. The preliminary objection, accordingly, fails and is rejected."
38. Whilst the petitioner political parties clearly have locus standi to claim right to form local governments under Article 17(2) of the Constitution, the other limb of the objection is that persons elected to the local government offices discharge executive functions. Therefore they C fall into the definition of service of Pakistan under Article 260 of the Constitution and are disentitled to the benefit of Article 17(2) of the Constitution. In the first place section 64(2) of PLGA clarifies that executive authority of a local government vests in and is to be exercised by its Mayor or Chairman.
The remaining office bearers and members of local government do not by law exercise executive authority within the meaning of said provisions of the PLGA. Therefore their office or post is not held in connection with the affairs of the Province and is outside the terms of Article 260 of the Constitution. Consequently, the objection raised by respondents cannot apply to the vast majority of elected representatives of local government.
39. In so far as the incumbents in the office of Chairman and Mayor of local government are concerned, prima facie such persons do fall within the definition of service of Pakistan. However, the denial of the right under Article 17(2) of the Constitution to such office bearers of local government is attracted after they get elected to the said offices. The disqualification under Article 17(2) of the Constitution applies to holders of such offices and not to candidates who are contesting the same. At the present stage of elections, the bar under Article 17(2) of the Constitution does not operate upon candidates sponsored by political parties. The successful candidates may exercise an option available to the holder of a post falling in the service of Pakistan by disassociating themselves for partisan political activity. The Hon'ble Supreme Court in Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Bain (PLD 2013 SC 01) observed that the elected office of the President of Pakistan must be discharged with complete neutrality and impartiality. However, in saying so, the Hon'ble Supreme Court has not disqualified a person with a political background from contesting for the office of President. After election, a chairman or mayor of local government shall have an option to disassociate from his previous political association and thereby to exercise his functions with neutrality. Be that as it may, in so far as elections to local government are concerned, no person who is a candidate of political party can be excluded from contesting election to all offices in local governments. The fact whether an elected office bearer of local government is disqualified to contest for re-election, is a matter for statutory provision which issue does not concern the resolution of the controversy before the Court.
40. Finally it must be observed that under sections 12 to 15 of the PLGA the elected representatives of Union Councils, Municipal Committees, Municipal Corporations and Metropolitan Corporations constitute an electoral college for the post of Chairman and Vice-Chairman, Mayor and Deputy Mayor of such local governments. Elections to the said offices are therefore indirect and not based on the principle of universal suffrage. As already noted, the offices of the -Chairman and the Mayor of local governments are vested with and exercise executive authority on behalf of their respective governments. These are important ,offices. If an electoral college lacks political foundation and roots, then the members of such electoral college can be easily swayed by personal or extraneous considerations to vote for a candidate lacking merit. The political choice exercised by each member of the electoral college in choosing the right candidate for the office of Chairman or Mayor, as the case may be, of the local government, it is necessary that the members of the electoral college are imbued with political vision, principles and values. These attributes are nurtured on the platform of political parties. In other words to bring integrity in and to prevent the vice of horse-trading from entering the decisions of the electoral college it necessary that the political profile and identity of members of the electoral college is discernable from the outset by the badge of their political parties.
41. The foregoing are the detailed reasons given in aid of our findings that section 18 of the PLGA offends Articles 140A and 17(2) of the Constitution.
(Sd.)
UMAR ATA BANDIAL, C.J.
' With utmost respect I have appended a separate note to the detailed judgment recorded by the Hon'ble Chief Justice.
(Sd.)
MUHAMMAD FARRUKH IRFAN KHAN, J ' MUHAMMAD FARRUKH IRFAN KHAN, J.--I had the honour to go through the detailed judgment rendered by the Hon'ble Chief Justice and with utmost respect I do not find myself in agreement with the finding in so far as it holds that the delimitation process is within the domain and authority of the Provincial Government. While I had subscribed to this view as expressed in the short order announced on 711-2013, however, thereafter a large number of writ petitions pertaining to delimitation of local government constituencies placed before me for hearing were decided by me as a Single Bench. Those petitions highlighted gross irregularities and illegalities committed by the government functionaries in exercise of their powers under The Punjab Local Government Act, 2013.
In the meanwhile, election schedule for the local bodies elections was announced and one of our learned brothers while relying upon newly inserted section 10-A of the Act ibid held (in Writ Petition No,15033 of 2013 decided on 13-12-2013) -as follows: ""5. Since the Election Commission of Pakistan has notified the election schedule and the electors of each Union Council/Ward are called upon to elect their representatives of Local Government Institutions, as such after issuance of such notification the Delimitation Officers/Delimitation Authority have become functus officio in order to review or to correct any delimitation of any Union Council or Ward. This Court in Constitutional jurisdiction, thus also would not be in a position to direct such Authority or Officer to review or correct any delimitation process which has already attained finality on issuance of election schedule. No action thus is required to be taken in the writ petitions, the same are disposed of as such.
6. The office is directed not to entertain and fix any writ petition filed requiring any direction to the Delimitation Authority/Officer or seeking any review or correction in any delimitation of a Union Council or Ward which already attained finality as noted herein above."
2. The above said judgment was cited before me as a precedent and as I was in respectful disagreement of the same, referred the matter to the Hon'ble Chief Justice for constitution of a larger bench. Consequently I had the honour to be a part of the larger bench comprising my learned brothers Syed Mansoor Ali Shah and Atir Mehmood, JJ. Constituted by the Hon'ble Chief Justice.
3. During the course of arguments before the larger bench it became evident to me that at the time of adjudicating upon this issue in the present lis no instance of any abuse of the delimitation process was brought to the notice of this bench. Moreover proper assistance was not provided to this bench regarding the role of Election Commission of Pakistan in undertaking the exercise of "holding" elections to the local governments under Articles 140A(2) and 219(d) of the Constitution of Islamic Republic of Pakistan, 1973.
4. The provisions of Article 140A(1) of the Constitution no doubt empowers each province to legislate to establish a local government system and devolve political, administrative and financial responsibility and authority to the representatives of the local government yet subsection (2) of the said Article enjoins upon the Election Commission of Pakistan to hold the elections which aspect is further enforced in Article 219(d) of the Constitution. The 18th amendment has enlarged the scope and duty of the Election. Commission of Pakistan by empowering it in "holding" of election of the local governments. Thus applying the principle of harmonious construction, it appears that the legislature in its wisdom has segregated the duties of both the said organs of the State conscientiously and purposefully. As a consequence the Provincial Government may legislate on the issue of local government elections but it cannot empower itself to undertake any aspect of the "holding" of elections of local government which is mandated to Election Commission of Pakistan. It was also not pressed before this bench that while legislating the Provincial Government under sections 19, 20 and 21 has required the Election Commission to "conduct" the elections and not "hold" the elections. Moreover it has mandated preparation of electoral rolls for the local government elections to the Election Commission. Preparation of electoral rolls is also a part J of "holding" of the elections, therefore, by its own act Provincial J Government appears to acknowledge the enlarged role of the Election Commission of Pakistan in "holding" of the election and yet is bent upon in usurping the mandate given to the Election Commission by the .K Constitution to the extent of "delimitation" of the local bodies constituencies.
5. Inter alia, the aforesaid aspects were not examined by this bench while arriving at the conclusion expressed in the short order. Despite the fact that every effort was made by me to adhere to the view taken by this Division Bench as reflected in the short .Order announced on 7-11-2013, however, the aspect of consideration of empowerment of the Election Commission (to hold rather than conduct elections) coupled with the detailed reasoning given in the judgment of the larger bench announced on 31-12-2013 enabled me to correct my earlier view as expressed in the short order as I was duty bound to adjudicate and decide the matter on the basis of arguments/assistance at the bar and the materials placed before me in the subsequent proceedings of the larger Bench. I am, therefore, unable to subscribe to the reasoning given by the Hon'ble Chief Justice on the delimitation aspect of the lis before this bench and it is my considered opinion that the Full Bench judgment must be yielded to.
6. As to the finding of holding of the local bodies election on party basis, I am in full concurrence with the findings and reasoning given by the Hon'ble Chief Justice.
(Sd.)
MUHAMMAD FARRUKH IRFAN KHAN, J