TASSADUQ HUSSAIN JILLANI, CJ.--- This judgment shall dispose of Civil Appeal Nos. 38 to 45 of 2014 and Civil Petition Nos. 26-K to 34-K, 163 & 164 of 2014 as all of them are directed against the same impugned judgment of the High Court of Sindh, Karachi dated 26.12.2013 whereby the Court allowed the Constitution petitions of the respondents, annulled the delimitation exercise carried out by the Delimitation Officers in the Province of Sindh under the Sindh Local Government Act, 2013 and declared the amendments made in the said Act as ultra vires of the Constitution in terms as follows:--- "60(e) The amendments made through Sections 3, 4 and 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 (which is now passed by the Sindh Assembly) whereby a proviso has been added in sub-section (1) of Section 13, sub-section (12) & (14) have been added in Section 18 and substitution made in Schedule-I, in Part-C under the head "Union Committee in Metropolitan Corporation" for the figures "40,000-50,000" to the figures "10,000 to 50,000" in Sindh Local Government Act, 2013 are violative of Sections 12, 13, 34, 35, 36 and 153-A of the Sindh Local Government Act, 2013 and also opposed to the Articles 17, 25, 140A, 218 and 219 of the Constitution which are struck down accordingly. "
2. Learned counsel for the appellant Mr. Farooq H. Naik, ASC made following submissions:---
(i) in terms of Article 140A of the Constitution of Islamic Republic of Pakistan, elections to the local governments are to be conducted by the Election Commission of Pakistan; that as provided under Article 219(d) which relates to the duties of the Commission, the holding of general elections to the National Assembly, Provincial Assemblies and Local Governments is the duty of the Election Commission; that Article 222(b) inter alia mandates that Majlis-eShoora (Parliament) may by law provide for delimitation of constituencies but, "subject to the Constitution";
(ii) the question of delimitation is anterior to the elections; that no law has been enacted by the Majlis-e-Shoora/Parliament in terms of Article 222(b) for delimitation of constituencies of the local councils whereas it has enacted the Delimitation of Constituencies Act, 1974 only with regard to delimitation of constituencies of National and Provincial Assemblies. Refers to Fourth Schedule, Part-I wherein the Federal Legislative List has been provided, Item No. 41 of which relates to the election to the office of President, to the National Assembly, the Senate and the Provincial Assemblies, Chief Election Commissioner and Election Commissions but no reference has been made with regard to the election of local councils. Thus Election Commission of Pakistan has no power to carry out delimitation of the constituencies of local bodies; that in terms of Article 142(a) and (d) of the Constitution, the distribution of the legislative powers has been spelt out and enacting laws with regard to the elections of local bodies is not included in the legislative powers and the concurrent legislative list as provided in terms of Article 142(b) is "to make laws with respect to criminal law, criminal procedure and evidence"; (i.e) in Sindh till date no rules have been framed for delimitation of constituencies of local bodies and only guidelines have been issued; that the Sections relatable to delimitation in the Sindh Local Government Act, 2013 are Sections 38, 10 and 11 and the expression "prescribed manner" appearing in Section 11 has been defined in Section 3, item 52.
3. Learned counsel for the appellant requested for a day's time to respond to the query as to whether Rule 8 of the Sindh Local Council (Election) Rules, 2013 is in accord with Section 11 of the Sindh Local Government Act, 2013 or not? Learned counsel for the appellants submitted that for delimiting the constituencies the law itself has laid down guidelines. In this connection he referred to Sections 10, 11 & 12 and in particular the expression used in all these three sections "as far as possible" which is indicative of the fact that the legislature kept in view the ground realities as well.
He added that the powers of District Delimitation Officers were conferred on the Deputy Commissioners and the Commissioners were made the Appellate Authorities; that 1089 appeals were filed before the Commissioners and all of them were disposed of and in none of those appeals there was any allegation of male fide against the Delimitation Officers. He added that although the population criteria was the census carried out in 1998 but the fact remains that lot of new voters had been registered since then and they could not be disenfranchised. That is why the Election Commission has been revising the Electoral Rolls from time to time. He pointed out that during the delimitation process the instructions of the Election Commission inter alia to keep the census blocks intact was complied with and it was strictly in the light of the said direction of the Election Commission of Pakistan that initially the pilot project was launched in Malir city, Karachi and finding that the same was successful, the delimitation proposals for the Province of Sindh were finalized.
4. He relied on Muhammad Abdus Salam vs. Chairman, East Pakistan Election Authority and others (PLD 1965 Dacca 231 at page 235) to contend that the expression 'as far as possible' which is similar to the expression 'as far as practicable' or 'having regard to territorial unity' appearing in Section 6 of the Electoral College Act, 1964 was a subject of judicial review before the High Court of Dacca and it was held as follows:--- "Further requirement, however, is that delimitation shall be effected "having regard to territorial unity". The expression "having regard to" means bearing in mind or taking into consideration.
Therefore, the requirement is to bear in mind the question of territorial unity. Even if it can be said that there is a command, it consists in taking into consideration the question of territorial unity. It is nowhere provided that the territorial unity shall be maintained in all circumstances. No such assurance can be read in the said provision. Territorial unity has indeed been made a basic consideration but it is not an absolute requirement of law. In order to succeed in these petitions it is to be established that delimitation has been effected in a manner contrary to a mandatory provision of the statute. It is claimed in these two petitions that the territorial unity has been violated. It has neither been urged nor can it be found on the materials before us that the question of territorial unity has not been considered at all. It is true that consideration means fair and reasonable approach to the question. It requires faithful and true application of mind to the direction of the Legislature. It must be done bona fide, and not in fanciful and haphazard manner.
But, it is indeed difficult to hold that the question of territorial unity was not made the basis of consideration in the determination of the units in these two cases specially in view of the assertions made in the affidavits-in-opposition as quoted above. "
5. Dilating on the power of the High Court under Article 199 of the Constitution, it was argued that the learned High Court could not go into the vires of the delimitation process as it entailed factual inquiry which exercise could not be undertaken in Constitutional jurisdiction. He added that on the completion of delimitation exercise it emerged that various councils had discrepancies in terms of population criteria, which was impossible to match with the prescribed figures without breaking the census blocks. It was on account of this practical difficulty that through the 3rd Amendment in the Sindh Local Government Act, 2013 in Schedule I, Part-B clause (b) was amended. He read out para 34 of the impugned judgment to highlight the argument of learned Advocate General Sindh in this regard. The Third Amendment was brought keeping in view the ground realities of the population discrepancies and census blocks which is evident from page 197 of the petition (CA 38/2014).
Learned counsel contended that the direction of the learned High Court in para 60(b) to the effect that the elections be conducted on the basis of delimitation a existed prior to 2013 would not bring a major change so far as the population discrepancy between various constituencies is concerned and if in 2001 it was not gerrymandering, almost the same discrepancy could not be classified and struck down as gerrymandering. He added that the delimitation exercise was being conducted under the orders of this Court and the same has been set at naught vide the impugned judgment.
Learned counsel further contended that the Constitution of Islamic Republic of Pakistan envisages a representative democracy wherein as per the Preamble sovereignty lies with ALLAH Almighty but it has to be exercised through chosen representatives. The concept of representative democracy is reiterated in Article 32 of the Constitution but numerical equality of population between the various constituencies is not a condition precedent for representative democracy. In support of the submissions made, learned counsel relied on two judgments i.e. McGinty and others Vs. State of Western Australia (1996) 1 LRC 599 & Regina Vs. Boundary Commission for England (1983) 2 WLR 458.
6. Dilating on the panel system in the local government elections on 2.11.2013 vide the Sindh Local Government (Amendment) Act, 2013, learned counsel submitted that the candidates of political parties and independent candidates both were required to join a panel to contest the elections.
However, where single ward elections are to be contested such as in the Town Committees and Municipal Committees there is no requirement of elections as panel. He added that the multiple member union councils and union committees require a panel as each ballot would otherwise have multiple candidates contesting on the same symbol creating serious complications and confusion for the voters; that the ballot papers would also stretch to many pages and would significantly prolong the duration in which ballot papers are issued as well as during vote count. It is very likely that rejected votes in such a convoluted and chaotic exercise would exceed the number of valid votes; that this would cause a major problem for ECP as it would have to print approximately 11 crore ballot papers for non-panel election as compared to only 3 crore ballots for panel election as reported. Yet another consideration for panel election was that for the first time party based local government elections were being conducted, and it was deemed necessary that the panel system should be introduced as it would weaken sectarian, ethnic, baradri and such other prejudices which are tearing the society apart and that the panel system would weaken these prejudices and strengthen political parties which contest elections on issues. This would also discourage horse trading that is normally associated with independent candidates. With these legitimate motives and considerations and with a view to facilitate ECP, the panel system was introduced.
7. Addressing the Court on addition of a proviso to Section 13(1) of the Sindh Local Government Act, learned counsel argued that to enable the Delimitation Officer to overcome a practical difficulty when he comes to the conclusion that an area which was rural has a clear status of an urban area at the time of delimitation he may pass an order accordingly, so a proviso was added to Section 13(1) which has been struck down vide the impugned judgment as ultra vires. This argument according to him was not violative of any Constitutional provision.
8. Barrister Farogh Naseem, learned counsel for the respondent No. 1 (in Civil Appeal No. 38/2014) while defending the impugned judgment made following submissions:--- a. The principle of "one man one vote" is fully entrenched in our country in view of Articles 51(5) and 25 of the Constitution and Sections 7(1), 8(4) and 9(2) of the Delimitation of Constituencies Act, 1974; b. In view of the newly added Articles 140A, 219(d) read with Articles 7, 32 & 37(i) of the Constitution, the principle of "one man one vote" is fully applicable to the local government elections; c. As mandated by the Constitution and Sections 10(2)(b) of the Sindh Local Government Act, 2013 and Section 8(2)(c) of the Punjab Local Government Act, 2013, law provides for uniformity in population in Union Council; d. With a view to comply with this Constitutional mandate, Section 10(2)(b) of the Sindh Local Government Act, 2013 and Sections 8(2)(c) of the Punjab Local Government Act, 2013 have to be read down to ensure uniformity in population of Union Committees /Wards, failing which it would be violative of Article 25 of the Constitution; E. Indeed the population of the constituencies cannot be equated with each other with mathematical exactitude, a limited variation of 5% may be permitted. Maximum variation upto 10% may only be permitted if the government is able to give reasons as to why any fluctuation beyond + 5% has been provided in the' constituencies. Therefore, the delimitation carried out including the notification dated 21.11.2013 for Karachi (at page .158) in violation of the principle of 'one man one vote' subject to the above permitted variation, is void and against Articles 25 and 51(5) of the Constitution read with Sections 10(2)(b) of Sindh Local Government Act, 2013; f. The notification dated 12.11.2013 attempting to equate the delimitation process for Union Councils with Union Committees is void due to the disparity in the population criteria; g. There is no estoppel against the Constitution or statute. Therefore, if there has been any population disparity in previous local bodies' elections, it cannot justify the population disparity impugned before the High Court though it can be safely stated that the population disparity, if any, on previous occasions is no match to the one attempt this time; h. In essence, the exercise of delimitation is cumbersome and requires proper analysis, assessment and application of mind from many facts. This would also require the leading of evidence and the opportunity to examine, cross examine and re-examine witnesses. The so-called Delimitation Officers lacked any expertise in this regard. The appellants were not justified to carry out the exercise of delimitation in a manner which was premeditated, farcical and nothing but a smoke screen, violating the elementary principle of structuring the discretion. Also the very exercise of delimitation had been carried out without any statutory guidelines. As such the entire exercise of delimitation carried out in the Province of Sindh is unConstitutional and void; i. The High Court under Article 199 of the Constitution was fully empowered to correct any delimitation which had been carried out in violation of Constitutional law, law and the principles of law extracted through judicial decisions; j. The High Court under Article 199 of the Constitution was fully empowered to strike down any law or provisions therein, which violated the Constitution. The learned High Court was fully justified to have struck down the provisions pertaining to the mandatory requirement to contest elections of the local government through a panel system, the proviso to Section 13 of the Sindh Local Government Act and the amendment of the population criteria from 10,000 to 50,000 instead of 40,000 to 50,000 for Union Committees in Metropolitan Corporations as the same were arbitrary, illegal, discriminatory and constituted gerrymandering; and k. The exercise of delimitation is to be carried out by an independent body which presently under the Constitutional dispensation is the Election Commission of Pakistan.
9. In support of the submissions made, learned counsel relied on Nawaz Shard vs. President of Pakistan (PLD 1993 SC 473 at page 666 para 8 and page 646 placetum "F"), Elahi Cotton Ltd. Vs. Federation of Pakistan (PLD 1997 SC 582 at 676), Rauf Bakhsh Kadri vs. The State (2003 MLD SC 777), Excise & Taxation Officer, Karachi vs. Burmah Shell Storage and Distribution Company of Pakistan Ltd. (1993 SCMR 338), Association of Resident of Mhow (ROM) and Anr. Vs. The Delimitation Commission of India and others (AIR 2009 SC 3278 para 3), State of Madhya Pradesh and others vs. Devilal (AIR 1986 SC 434 at 440, para 15), Rameshchandra Ramanbhai Patel and another vs. Collector and others (1979) 1 GLR 191 paras 19, 20, 21, 23, 22 & para 60) and Surendrasinhaii Jorawarasinhji Jhala vs. U.M. Bhatta and others (AIR 1969 Gujrat 292).
10. He submitted that the Australian judgment on which reliance was placed by the Advocate General Punjab before the High Court was given in a certain context as the law provided for an electoral disparity (Electoral Act, 1907). This provision was unsuccessfully challenged but subsequently the said law was amended by the Electoral Amendment and Repeal Act, 2005; that in terms of Article 10A, the delimitation process has to be fair, transparent which it has been established before the High Court of Sindh, it was not and has rightly been set at naught. In support of this submission, learned counsel relied on Imran Khan vs. Election Commission of Pakistan (PLD 2013 SC 120), All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner & Others (AIR 2007 NOC 1801 (MAD) (FB), Gatron Industries Limited vs. Government of Pakistan (1999 SCMR 1072 at 1087), Ismail Vs. Sher Bano (1988 SCMR 772), Abdul Haque vs. Shoukat All (2003 SCMR 74). He added that the District Delimitation Officers were not provided with any guidelines while undertaking the process of delimitation and the discretion exercised by them besides being unstructured was arbitrary. Referring to Section 11(1) he mandates that the law provides that the "Government shall, in the prescribed manner, delimit wards in Municipal Committees, Town Committees and Corporations" and the expression 'prescribed' has been defined in Section 3 sub- section (i.e) as "prescribed by rules" but the Rules under the Sindh Local Government Act, 2013 were framed on a later date i.e. 27.11.2013 whereas the delimitation notification had already been issued on 21.11.2013; that a combined reading of Article 142 Item 41(Fourth Schedule) of the Federal Legislative List, Article 218(3) and Article 219(d) would indicate that the Constitution-makers mandated that the Election Commission of Pakistan would hold the election of the local government and the process of delimitation which is part of the election process had to be carried out by the Election Commission of Pakistan. He added that the term 'election' has to be defined and construed with reference to the context in which it has been used and the judgments from Pakistan jurisdiction wherein it has been held that the election process commences with the issuance of the election schedule would not be helpful in the instant case as the context is distinct; the question mooted before this Court is the process of delimitation. In support of the submission made, learned counsel relied on State of Gujarat v. Jamnadas G. Pabri and others (AIR 1974 SC 2233) and Muhammad Nazir Hakim vs. Bukhtiar Said Muhammad and the Controlling Authority, Montgomery (PLD 1962 Lahore 421).
11. Syed Mureed Ali Shah one of the respondent in Civil Appeal No. 39/2014 and petitioner in Civil Petition No. 163/2014 while defending the impugned judgment submitted that the delimitation process carried out by the Deputy Commissioners was the arbitrary, non-transparent and reflects total disregard to the principle of population parity and contiguity; that to give legal cover to the exercise of delimitation carried out by the Deputy Commissioners in Sindh, a proviso was added to Section 13(1) which reflects mala fides on the part of the appellant. He added that the notification dated 26.9.2013 appointing Divisional Commissioners as Election Tribunal to hear objections appeals against the delimitation proposals was flawed and suffered from illegalities as under:-
(i) the notification dated 26.9.2013 was not issued with the prior approval of the competent authority and in conformity with Article 139 read with rules and regulations;
(ii) the notification was issued without recital (no law mentioned);
(iii) under Article 219(c) and Section 47 of the Act, the cabinet or the Chief Minister cannot appoint Election Tribunal? and
(iv) the notification was never published in official Gazette as such, the notification never took effect right from its inception.
12. He added that the amendment made in the Sindh Local Government Act, 2013 through Sections 3, 4 & 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 (which has now become Act) whereby a proviso has been added to sub-section (1) of Section 13, sub-section (12) &
(14) have been added in Section 18 and substitution made in Schedule-I, in Part C under the head "Union Committee in Metropolitan Corporation" for the figures "40,000-50,000" to the figures "10,000 to 50,000" in Sindh Local Government Act, 2013 is violative of Sections 12, 13, 34, 35, 36 and 153-A of the Sindh Local Government Act, 2013 as also of the Constitution and has rightly been struck down by the learned High Court.
13. Learned Attorney General for Pakistan Mr. Salman Aslam Butt made following submissions:- a. The function of the Election Commission of Pakistan before the 18th Amendment was to conduct elections for National Assembly, Provincial Assembly, Senate and President etc but after the 17th and 18th Amendment, Article 218 & 219(a)(c) were amended and Article 140A was added and now it is one of the functions of the Election Commission to hold elections of the local government; b. The right to vote in local government elections is a statutory right; c. Unlike National and Provincial Assemblies' Members, the Members of the local councils enjoy powers which are administrative in nature over certain local area in a Province and, therefore, the power to delimit the constituencies has rightly been given to the Provincial Government. Referring to the Item 41 of the Federal Legislative List, Fourth Schedule, learned Attorney General contended that under the Constitutional mandate Majlis-e-Shoora has no power to enact laws ertaining to local council as this subject is not inbluded in the said subject and Article 142(c) specifically provides that "subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List": d. On the nature of the right to vote, he relied on Muhammad Nawaz vs. Moulvi Allah Bakhsh (PLD 1952 SC 64 at page 71), Kuldip Nayar v. Union of India (AIR 2006 SC 3127).
14. Mr. Makhdoom Ali Khan, learned amicus curiae submitted that there are two distinct sets of propositions in these cases i.e. (i), what are the powers of the Election Commission of Pakistan under the Constitution, and (ii) the specifics of the Sindh Local Government Act, 2013. He added that the proviso to sub-section (1) of Section 13 was added through Third Amendment (CMA No. 652 in CA 38/2014, Act is at page 2); that in the un-amended Section 13(1) there was provision of a prior notice and inviting objections from the people of the area before it could be declared to be urban or rural and adding a proviso to the effect that Delimitation Officer/Deputy Commissioner during the process of delimitation could declare any area to be rural or otherwise amounts to undoing of the sub-section (1) of Section 13 which is not tenable in law. He added that in certain situations/cases the doctrine of reading down can be invoked but there may be others where this cannot be; that the proviso added is devoid of any guideline and is a classic case of excessive delegation; that to confound the situation even the appeals filed against the orders of the Delimitation Officers exercised under the afore-referred provisions were disposed of by non- speaking orders. He added that the principle of severability can be applied but it has its limitations.
First, the object of reading down is to save the statute. In doing so the paramount consideration would be that in the event of reading down would the statute remain functional. Second, would the legislature have enacted the law if that issue had been brought to its notice which is being agitated before the Court? Examined in the light of the above principles if the proviso is read down then nothing remains in the statute. In support of the submissions made, learned counsel relied on East & West Steamship Co. Vs. Pakistan (PLD 1958 SC 41 at 72).
15. He relied on Kelly A. Ayottee. Attorney General of New Hampshire vs. Planned Parenthood of Northern New England (546 U.S. 320 (2006), relevant portion of which is as under:- Three interrelated principles inform our approach to remedies. First, we try not to nullify more of a legislature's work than is necessary, for we know that "[a] ruling of unConstitutionality frustrates the intent of the elected representatives of the people." Regan v. Time, Inc., 468 U.S. 641, 652 (1984)
(plurality opinion). It is axiomatic that a "statute may be invalid as applied to one state of facts and yet valid as applied to another. "Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921).
Accordingly, the "normal rule" is that "partial, rather than facial, invalidation is the required course," such that a "statute may ... Be declared invalid to the extent that it reaches too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985); see also Tennessee v. Garner, 471 U.S. 1 (1985); United States v. Grace, 461 U. S. 171, 180-183 (1983).
Second, mindful that our Constitutional mandate and institutional competence are limited, we restrain ourselves from "rewriting state law to conform it to Constitutional requirements" even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background Constitutional rules at issue and how easily We can articulate the remedy. In United States v. Grace, supra, at 180-183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself. We later explained that the remedy in Grace was a "relatively simple matter" because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U.S. 454, 479, n. 26 (1995). But making distinctions in a murky Constitutional context, or where line-drawing is inherently complex, may call for a "far more serious invasion of the legislative domain" than we ought to undertake. Ibid. Third, the touchstone for any decision about remedy is legislative intent, for a Court cannot "use its remedial powers to circumvent the intent of the legislature."Califano v. Westcott, 443 U.S. 76, 94 (1979) (Powell, J., concurring in part and dissenting in part); see also Dorchy v. Kansas, 264 U.S. 286, 289290 (1924) (opinion for the Court by Brandeis, J.). After finding an application or portion of a statute unConstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally Booker, supra, at 227; Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999); Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U.S. 210, 234 (1932); The Employers'
Liability Cases, 207 U.S. 463, 501 (1908); Allen v. Louisiana, 103 U.S. 80, 83- 84 (1881); Trade-Mark Cases, 100 U.S. 82, 97-98 (1879). All the while, we are wary of legislatures who would rely on our intervention, for "it would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the Courts to step inside" to announce to whom the statute may be applied. "
16. He also relied on Free Enterprise Fund and Beckstead and Watts, LLP vs. Public Company Accounting Oversight Board (561 U.S. (Docket No. 08-861) 2006), wherein it was held:--- "Generally speaking, when confronting a Constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact."Ayotte v.
Planned Parenthood of Northern New Eng., 546 U.S. 320, 328-329 (2006). Because "[t] the unConstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions, "Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U.S. 210, 234 (1932), the "normal rule" is "that partial, rather than facial, invalidation is the required course,"
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). Putting to one side petitioners'
Appointments Clause challenges (addressed below), the existence of the Board does not violate the separation of powers, but the substantive removal restrictions imposed by 7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment.
See, e.g., Sampson v. Murray, 415 U. S. 61, 70, n. 17 (1974); Myers, 272 U.S., at 119; Ex-parte Hennen, 13 Pet., at 259-260. Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will, and leaves the President separated from Board members by only a single level of good-cause tenure. The Commission is then fully responsible for the Board's actions, which are no less subject than the Commission's on functions to Presidential oversight. The SarbanesOxley Act remains "'fully operative as a law with these tenure restrictions excised. New York, 505 U.S., at 186 (quoting Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987)). We therefore must sustain its remaining provisions "[unless it is evident that the Legislature would not have enacted those provisions independently of that which is [invalid]." lbid, (internal quotation marks omitted). Though this inquiry can sometimes be "elusive," Chadha, 462 U.S., at 932, the answer here seems clear: The remaining provisions are not "incapable of functioning independently," Alaska Airlines, 480 U.S., at 684, and nothing in the statute's text or historical context makes it "evident" that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will. Ibid.; see also Ayotte, supra, at 330.
It is true that the language providing for good-cause removal is only one of a number of statutory provisions that, working together, produce a Constitutional violation. In theory, perhaps, the Court might blue-pencil a sufficient number of the Boards responsibilities so that its members would no longer be "Officers of the United States. "Or we could restrict the Board's enforcement powers, so that it would be a purely recommendatory panel. Or the Board members could in future be made removable by the President, for good cause or at will. But such editorial freedom far more extensive than our holding today belongs to the Legislature, not the Judiciary. Congress of course remains free to pursue any of these options going forward. "
17. He relied on R.M.D. Chamarbaugwalla and another v. Union of India and another (AIR 1957 SC 628), Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 923) & London Graving Dock Co., Ltd. v. Horton (1951) 2 AEL 1 at page 3.
18. Learned amicus curiae submitted that the doctrine of reading down an enactment can be applied only in three situations: (i) when the purpose of legislation is obvious; (ii) it is clear that the draftsman has made an error; and (i.e) if the error had been pointed out to the Legislature it would have rectified the mischief. According to him if the afore-referred considerations are kept in view, this doctrine cannot be applied in the case in hand because the provision under challenge has been introduced with the clear object to vest an absolute discretion with a subordinate officer to be notified in future un-hatched by any limitation or constraint. Adverting to the panel system, learned counsel argued that many of the fundamental rights guaranteed under the Constitution are not confined to positive rights alone; they include the negative rights as well. For instance the right of freedom of expression would include to remain silent and the right of freedom of association of assembly (Article 16 of the Constitution) would include not to assemble and the right to form and join a political party would include the option not to join or form a party. In this context, he referred to a judgment of this Court in Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416 at page 519), with reference to Article 17(2) of the Constitution). Addressing the Court on the amendment whereby the variation in the constituencies was changed from 40,000 to 50,000 to 10,000 to 50,000, learned counsel contended that the principle of 'one man one voteandequality of representation is a fundamental Constitutional right. According to him, this principle does not require parity with mathematical exactitude because that would be practically impossible to achieve but a departure can be countenanced where it is absolutely necessary for effective representation and geographical compulsions. The deviation, however, has to be within certain parameters. He added that in Australian jurisdiction the Court has approved 10% variation. He relied on Reference Re Prov. Electoral Boundaries (1991) 2 SCR 158), relevant paragraph which is as under:--- "The actual allocation of seats between urban and rural areas is very close to the population distribution between those areas. The rural areas have 53.0 percent of the seats and 50.4 percent of the population. Urban areas have 43.9 percent of the seats and 47.6 percent of the population.
The rural areas are, therefore, somewhat over-represented, and the urban areas somewhat under- represented, but these deviations are relatively small. Similar deviations occurred on the redistributions proposed by the Constituency Boundaries Commissions of 1974 and 1979-80. For example, the 1979-80 Report allocated only 40.6 percent of seats to urban areas even though they had 42.6 percent of the population. In the 1974 redistribution, urban areas had only 36.1 percent of the seats but 38.9 percent of the population. It is thus seen that the effect of the allocation of seats to urban and rural ridings in the 1989 legislation was mainly to increase the number of urban seats to reflect population increases in urban areas. This belies the suggestion that the 1989 Act was an unjustified attempt to adjust boundaries to benefit the governing party."
19. He also referred to P.H. Lane's commentary on the Australian Constitution in which it is observed as under:- "Section 29 does not prescribe "one vote, one value" principle throughout the multiple electoral provisions created by Parliament. Mckinlay rejected the argument that s. 24 para 1, with its directly chosen by the people", require equal or practically equal federal electoral divisions, equal either in electors or in people. The Court referred to s 29 (and ss 24 ff which implied that there might be unequal electoral divisions constructed by the States and to Colonial laws of the 1880s-1890s which in fact marked out unequal electoral divisions. Hence the Court did not invalidate the Commonwealth Electoral Act 19181975 (Cth), although its provisions enabled the Distribution Commissioners to consider matters that would result in unequal electoral divisions, with a tolerance of 10 per cent above or below the standard electorate quota, for the House of Representatives. In practice, one electoral division in Queenland had nearly twice the number of electors as another division in the same State; in South Australia and Victoria, the discrepancy in the number of electors in different divisions was nearly as were as that in Queenland.
20. He contended that a combined reading of Articles 17, 19 & 25 read with Article 51(2) of the Constitution of Islamic Republic of Pakistan would suggest that the right it to vote is a fundamental right and not a statutory right. He added that if we keep in mind the conditions mentioned in Article 51(2) of the Constitution, it cannot be said that it is confined only to National and Provincial Assemblies' elections. He added that without the right to vote, the right to join a political party would become illusionary. In this connection he referred to a judgment of the U.S. Supreme Court reported at James P. Wesberry Vs. Carl E. Sanders ((1964) 376 US 1) wherein it was held as follows:-- - "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges [376 U.S. 1, 18] this right."
21. On the principle of equality of votes in constituencies in. The same judgment, it was held as under:- "While it may not be possible to draw congressional districts with mathematical precision that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. That is the high standard of Justice and common sense which the Founders set for us."
22. In Australia the same issue was addressed in John Dixon Vs. Britishh Columbia (1989) 59 DLR (4th) wherein it was held as follows:--- "Viewed in its textual context, the right to vote and participate in the democratic election of one's government is one of the most fundamental of the Charter rights. For without the right to vote in free and fair elections all other rights would be in jeopardy. "
23. He added that the argument that right to vote is a statutory right was raised in Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and was rejected. He also referred to Mrs. Benazir Bhutto v. Federation of Pakistan (PLD 1989 SC 66 at 73-74), Ch. Nasir Iqbal v. Federation of Pakistan through Secretary Law and others (PLD 2014 SC 72 para 6), Pakistan Muslim League(N) through Khawaja Muhammad Asif v. Federation of Pakistan (PLD 2007 SC 642 at 680) and Reference Re Prov. Electoral Boundaries (1991) 2 SCR 158). He contended that the petitioner before the High Court of Sindh did not demand the equality of votes in all constituencies and did not challenge the variation originally stipulated in the un-amended Act i.e. From 40,000 to 50,000 as the variation was 20 to 25%. However, by making this variation from 10,000 to 50,000 the variation has been increased to almost 500%. Responding to a Court query as to whether the principle of 'one person one vote' applies to local bodies, learned counsel submitted that the local bodies' system has mandate of the Constitution. He referred to Article 7 wherein the State has been defined as "the Federal Government, [Majlis-e-Shoora (Parliament], a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess". The local bodies by law have the power to impose tax or cess. In terms of Article 32, it is part of the Principles of Policy that "the State shall encourage local Government institutions composed of elected representatives of the areas". He added that Article 140A mandates that "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." Article 218(3) provides that "it shall be the duty of Election Commission of Pakistan constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against."
24. Khawaja Haris Ahmed, learned amicus curiae submitted that he endorses the arguments of Mr. Makhdoom Ali Khan on the question of panel system, on the principle of one person one vote and on proviso to sub-section- (1) of Section 1. Learned counsel contended that the right to vote is more than a fundamental right. It is the very basis of the Constitution which in its Preamble mandates that "whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust' ............................. "wherein the State shall exercise its powers and authority through the chosen representatives of the people." In terms of Article 140A of the Constitution, the Constitution calls upon the Provincial Governments to establish a local government system and the system would include the holding of elections as well. The entire election process, according to him, falls within the domain of Election Commission of Pakistan and it starts with preparation of electoral rolls which is a function entrusted to the Election Commission in terms of a Constitutional provision. He added that the power to make laws to establish local government system as mandated under Article 140A of the Constitution is with the Provincial Governments but the power to hold elections is with the Election Commission. Responding to the Court query as to why by inserting Article 140A the Constitution-makers had conferred this power to hold elections to the Election Commission, learned counsel contended that the obvious intent appears to be that the elections of the local government should be just and fair. The underlying idea, according to him, seems to be that the earlier dispensation in this context was not satisfactory. It was also necessary because now certain political and financial powers have been devolved on the local governments. He however maintained that although the power to hold elections of the local government has been conferred on the Election Commission but can the Provincial Government make laws to regulate this function? He contended that the answer to this question would lie in properly construing the purpose of Constitutional makers reflected in Article 218 whereby a permanent Election Commission has been formed. In terms of Article 219(d) holding of general elections of National Assembly, Provincial Assembly and the local governments have been specifically given to it, Article 221 which stipulates the rule making power of the Election Commission, Article 222 which mandates that "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."
25. All these provisions indicate that the purpose was to make the ECP independent and powerful so that it can carry out its Constitutional mandate. Referring to Article 41 of the Federal Legislative List in Fourth Schedule, he contended that there is an absolute exclusion of the Federal Government to legislate with respect to any matter not enumerated in the Federal Legislative List. He added that nevertheless, both the Local Government Acts of the Sindh and Punjab provide an oversight of Election Commission of Pakistan in the conduct of elections. Addressing on the question of distinction between the expression "holding of elections" appearing for the first time in Article 219(d) and the 'conduct of elections', learned counsel contended that the former expression is susceptible to a wider meaning. He in this regard referred to State of Gujrat v. Jamnadas G. Pabri and Qrs. (AIR 1974 SC 2233). The question that begs answer in this context is that when the Election Commission of Pakistan has been given power of oversight over the conduct of elections, why the power of delimitation of constituencies has been given to provinces? The answer to this would lie in giving a wider meaning to Article 140A(2) wherein it has been stipulated that "elections to local governments shall be held by the Election Commission of Pakistan." The expression holding of elections, according to him includes steps which are anterior to the election process i.e. The preparation of electoral rolls is a step anterior to that and if the said anterior power has been conferred on the Election Commission of Pakistan, the power of delimitation has to lie with the Election Commission of Pakistan. All the provisions in the Local Government Act providing for delimitation of constituencies would in the afore-referred circumstances be ultra vires of the Constitution.
26. Mr. Makhdoom Ali Khan, addressing the question as to whether the Election Commission of Pakistan should have the power to delimit constituencies, contended that he would endorse the arguments of Kh. Haris Ahmed on this point. Learned counsel contended that for the addition of Article 140A and the subsequent amendment in particular in Article 219(d), the purpose was to remove the mischief as the perception was that the provincial governments in the past had interfered in the local government system both in the elections and in functioning of local government system. The object was to articulate in the substantive provisions of the Constitution what earlier was only a principle of policy enshrined in Article 32 of the Constitution. He contended that the State comprises of three tears i.e. The Federal Government, Local Government and such local governments as may be stipulated in law. The Election Commission of Pakistan is a Federal Institution which does not represent any of the government and the persons who run the institution are persons of integrity and in the appointment of members of the Election Commission of Pakistan all the federating units have been represented. Elaborating his submission, he submitted that for the first time the Constitution-makers have used the expression 'holding of elections'
(Article 219(d) for the National Assembly, Provincial Assembly and local governments and of organizing and conducting elections to the Senate or to fill casual vacancies (Article 219(b)). The departure in the use of expression in the latter provision (Article 219(d)) is conscious because the Constitution-makers, it seems, were aware of the earlier decisions of this Court whereby it has been held that the election process commences from the issuance of notification of the election schedule. In this context, he referred to Election Commission of Pakistan vs. Javed Hashmi (PLD 1989 SC 396) and added that the facts in the said case are distinguishable. In the said case, the judgment was delivered with reference to Article 225 of the Constitution read with Representation of the People Act, 1976. The afore-referred provision of the Constitution excluded the jurisdiction of all Courts insofar as the election disputes were concerned and the jurisdiction was conferred on the Tribunal and the appeal was to lie before this Court. The object was clear that in case of a challenge to the election process the candidates would be bogged down. However, in Ghulam Mustafa Jatoi vs. Additional District & Sessions Judge/Returning Officer NA 158, Naushero Feroz (1994 SCMR 1299) a window was provided in Constitutional jurisdiction but in para 26 at page 1321 three pre-conditions have been laid for interference in Constitutional jurisdiction i.e. That there should be no other remedy; that the order under challenge is illegal and the candidate stands disenfranchised. Responding to the Court query that if the Court comes to the conclusion that the provisions relating to delimitation of constituencies both in the Sindh Local Government Act, 2013 and the Punjab Local Government Act, 2013 are ultra vires of the Constitution what is the remedy, learned counsel submitted that there should be two possible answers to this question. First, that Article 222(f) controls or qualifies the power of Election Commission of Pakistan with reference to the delimitation of constituencies (Article 222(a)(b)&(c). Secondly, the Court by a purposive construction of Constitutional provision can suppress the mischief. The Election Commission of Pakistan being an independent body to hold elections, the expression "holding of elections" should be widely construed as to include the power of Election Commission of Pakistan to carry out the delimitation process. In support of the submissions made, learned counsel relied on Henrietta Muir Edwards and others vs. Attorney General for Canada and others (J.C. 1929, 1930 Appeal Cases). In the said case, the issue was whether the expression "qualified persons" used in Section 24 of the British North America Act, 1867 would include a woman and consequently, whether women were eligible to be summoned and become members of the Senate of Canada. The Court of Appeal gave a wider meaning to the afore-referred expression "qualified persons" and came to the conclusion as follows:--- "A heavy burden lies on an appellant who seeks to set aside a unanimous judgment of the Supreme Court, and this Board will only set aside such a decision after convincing argument and anxious consideration, but having regard: (1) To the object of the Act namely, to provide a Constitution for Canada, a responsible and developing State; (2) that the word 'person' is ambiguous, and may include members of either sex; (3) that there are sections in the Act above- referred to which show that in some cases the word 'person' must include females; (4) that in some sections the words "male persons" are expressly used when it is desired to confine the matter in issue to males; and (5) to the provisions of the Interpretation Act; their Lordships have come to the conclusion that the word "persons" in s. 24 includes members both of the male and female sex, and that, therefore, the question propounded by the Governor General should be answered in the affirmative, and that women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly."
27. In the spirit of the afore-referred judgment, this Court may extend the power of the Election Commission of Pakistan conferred in terms of Article 222(b) i.e. "delimitation of constituencies by the Election Commission of Pakistan" to the local body and may hold that the Federal Government would have power to legislate. He further added that the principle/parameters of delimiting constituencies have already been laid down in both the Local Government Acts of Sindh and Punjab i.e. Principles of parity, the size of the local council and the principle of contiguity.
28. Learned amicus curiae Kh. Haris Ahmed submitted that only the Provincial Government has been authorized under the Constitution in terms of Article 140A to establish local government system and Election Commission of Pakistan to hold elections for the local government. The Sindh Local Government Act framed pursuant thereto contains several provisions where the Election Commission of Pakistan has been given powers of oversight.
29. In his right to reply Mr. Farooq A. Naik, learned Sr. ASC submitted that the basic purpose of 18th amendment was to empower the Provinces because there was a lot of hue and cry by the Provinces that there was interference by the Federal Government. The insertion of Article 140A of the Constitution, he contended is a proof of devolution because under this provision it has been mandated that "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 government." However, the power to hold elections to local government was conferred on the Election Commission of Pakistan in terms of sub-clause (2) of this Article. The Constitutional intent is evident from Article 219(d) of the Constitution which inter alia provides that the "Election Commission of Pakistan "shall be charged with the duty of holding of general elections to the National Assembly, Provincial Assemblies and the local governments." However, the Election Commission of Pakistan was not conferred any power to delimit the constituencies as it was anterior to the election process. The Constitutional intent, he added, is also evident from Article 222 which provides that the Majlis-e-Shoora may pass law to provide for "(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; (f) all other matters necessary for the due constitution of the two Houses and the Provincial Assemblies." Pursuant to the above, Majlis- eShoora enacted three laws i.e. The Electoral Rolls Act, 1974, the Delimitation of Constituencies Act, 1974 & the Representation of the People Act, 1976. Learned counsel further contended that notwithstanding the addition of Article 140A of the Constitution, the Constitution- makers did not bring about any change in the Federal Legislative List in the Fourth Schedule of the Constitution and Item No. 41 does not include law making to delimit constituencies of local bodies. Item No. 41 reads as follows:--- "Elections to the office of President to the National Assembly, the Senate and the Provincial Assemblies; Chief Election Commissioner and Election Commission. "
30. He relied on Nadeem Ahmed vs. Federation of Pakistan (2013 SCMR 1062) and also placed on record Charter of Democracy to bring home the point that it was decided to devolve powers to the Provinces. The Court confronted him with clause 10 of the Charter of Democracy whereby it was resolved that the elections to local bodies shall be on party basis through Provincial Election Commissions in respective Provinces but despite that in terms of Article 140A(2) the power to hold elections has been conferred on the Election Commission of Pakistan. To this learned counsel replied that later on during the deliberations of 18th Amendment it was resolved that the power to hold elections be conferred on the Election Commission of Pakistan as it was a neutral institution.
Learned counsel referred to various provisions of the Sindh Local Government Act, 2013 whereby the Election Commission of Pakistan has been given an oversight. Article 34(2) provides that the "Government shall, in consultation with the Election Commission, make an announcement of the date or dates on which the election for the Councils shall be conducted in the Province"; Section 34(3) provides that "the Election Commission of Pakistan shall organize and conduct the elections and to make necessary arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and the corrupt practices are guarded against" Section 38 mandates that "it shall be the duty of all executive authorities in the Province to assist the Election Commission of Pakistan in the discharge of its functions" Section 39(2) provides that "the electoral rolls for the Councils elections shall be prepared by the Election Commission of Pakistan in such manner as it may deem appropriate and the electoral rolls shall not be invalid by reason of any erroneous description in the electoral rolls of any person listed or of an omission of the name of any person entitled to be enrolled or of inclusion of the name of any person not so entitled"; by virtue of Section 40 it is for the Election Commission of Pakistan to appoint Returning Officer and Assistant Returning Officer; the Returning Officers are mandated to establish in each constituency polling stations according to list sent by the Election Commission of Pakistan; the Election Commission of Pakistan has to provide electoral rolls of the constituency to the Returning Officer (Section 43) and in addition to the above it has been provided that the Election Commission of Pakistan shall in relation to the election of local councils shall exercise "such other powers and perform such other functions as may be prescribed" (Section 44); under Section 47 it is Election Commission of Pakistan which has to appoint Election Tribunal to hear an Election Petition. On Court query as to why despite elaborate, oversight provided under the Act the power of delimitation of constituencies has not been given to the Election Commission of Pakistan, he replied that it was for the Provincial Legislature to decide such matters. Addressing the Court on right to vote, learned counsel relied on Articles 51 & 106 of the Constitution to contend that only the right to vote in National and Provincial Assemblies is a fundamental and the right to vote in the local government elections is a statutory right guaranteed under Section 39 of the Sindh Local Government Act.
Learned counsel contended that the principle of 'one person one vote' is not justiciable as held in Vieth vs. Jubelirer, President of the Pennsylvania Senate (541 US 267). He also relied on R.C. Poudyal v. Union of India and others (AIR 1993 SC 1804), Excise & Taxation Officer, Karachi vs. Burmah Shell Storage and Distribution Company of Pakistan Ltd. (1993 SCMR 338) & Elahi Cotton Ltd. Vs. Federation of Pakistan (PLD 1997 SC 582).
31. Having given anxious considerations to the submissions made at the bar by learned counsel for the parties and learned amici curie and having gone through the precedent case-law to which reference has been made, the issues which crop up for considerations are as follows:-
(i) whether the amendments made through Sections 3, 4 & 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 whereby a proviso had been added in sub-section (1) of Section 13 and sub-section (12) and (14) have been added in Section 18 as also substitution made in Schedule-I in Part-C under the head Union Council in Metropolitan Corporation with the figures 40,000 to 50,000 to the figures 10,000 to 50,000 in Sindh Local Government Act, 2013 are violative of Sections 12, 13, 34, 35, 36 and 153 of the said Act and are also violative of Articles 25, 140A, 218 & 219 of the Constitution?
(ii) whether the provisions of law under challenge can be protected by invoking the principle of reading down or reading in? & (i.e) whether the process of delimitation of constituencies is part of the election process and in view of Article 140A of the Constitution has to be undertaken by the Election Commission of Pakistan and not by the Government of Sindh?
Issue No. I
(i) whether the amendments made through Sections 3, 4 & 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 whereby a proviso had been added in sub-Section (1) of Section 13 and sub-section (12) and (14) have been added in Section 18 as also substitution made in Schedule-I in Part-C under the head Union Council in Metropolitan Corporation with the figures 40,000 to 50,000 to the figures 10,000 to 50,000 in Sindh Local Government Act, 2013 are violative of Sections 12, 13, 34, 35, 36 and 153 of the said Act and are also violative of Articles 25, 140A, 218 & 219 of the Constitution?
32. To appreciate the issue framed, it would be pertinent to refer to the provisions under challenge (which were declared to be ultra vires by the High Court of Sindh, are as under:- Original Section 13 of the Sindh Local Government Act, 2013.
"13. Declaration of urban and rural areas.---
(1) Government may, after inviting objections from the residents of an area and hearing those from amongst them who wish to be heard, declare by notification such area, to be an urban area or rural area, as the case may be.
(2) For the purpose of the Act, all areas which are urban areas or rural areas as the case may be, at the time of commencement of the Act shall be deemed to be urban areas or rural areas, as the case may be. "
After the promulgation of the Sindh Local Government (Third Amendment) Ordinance, 2013: Proviso (1) to Section 13 has been added: Provided that where the delimitation officer has come to the conclusion that an area which is rural, has acquired the status of urban area at the time of delimitation under this Act, he may declare such rural area to be urban area and such area shall be deemed to be an urban area accordingly.
(Emphasis is supplied)
33. The learned High Court of Sindh declared the afore-mentioned proviso to be ultra vires of the Constitution and held as follows:--- "The above post facto legislation has been made to cover up the irregularities, deficiency and the violation of Section 13, which otherwise make it evident without any shadow of doubt that during the delimitation process the compliance of Section 13 was utterly violated and an attempt has been made to cover up and protect the non-compliance. This proviso is also discriminatory and illegal and made to circumvent the original text of Section 13 though in our view the proviso attached to any section is cannot be read in isolation and the powers given in the proviso cannot be uncontrolled or independent to the original section. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment.
Since in this case proviso has been added to nullify the original text and provided protection with retrospective effect to the acts of delimitation officers to cover up illegalities committed by them in the exercise of delimitation with the amendments made on 13.12.2013 with retrospective effect from 16.9.2013 therefore, this amendment is unConstitutional which virtually made impossible to hold fair and free elections in terms of Section 34 of the Sindh Local Government Act, 2013 and under Articles 218 and 219 of the Constitution of Pakistan, 1973. We are also of the firm view that this proviso has been added to circumvent our judgment passed in C.P. No. D-4924/13 on 5.12.2013 in which while remanding a matter to the Appellate Tribunal we had observed the non-compliance of Section 13 of the original Act, 2013 before adding the proviso and directed to the Appellate Authority to decide the appeal afresh. It was also found in some appellate orders that the delimitation officers in their comments tried to justify the inclusion of rural areas into urban with the plea that said rural areas begun to develop which suffice to show their on admissions that the requirements envisaged under Section 13 were not fulfilled and proviso has been added later on with the sole purpose to undo their fault and illegalities."
34. A comparison of un-amended Section 13(1) of the Act would indicate that in the former there was a provision of prior notice and inviting objections froth the people of the area before it could be declared to be urban or rural. In the amended provision, a proviso has been added to the effect that the Delimitation Officer/Deputy Commissioner during the process of delimitation could declare any area to be rural or otherwise without even a prior notice. The powers have been delegated without any guideline. This excessive and arbitrary delegation of power is not only vulnerable to misuse but has been so used and which is evident from the manner in which the appellate authority i.e. The Commissioner decided the appeals through non-speaking orders. An argument was raised that the Court should make every effort to save the statute and this can be done by invoking the principle of 'reading in` or 'reading down'. However in this context two principles have to be kept in view. First that the object of 'reading down' is primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, can the statute remain functional? Second, would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before the Court?
35. Examined in the light of these two principles, if the proviso is read down, the said provision of law would not remain functional and become ineffective. If the afore-referred principles are kept in view, then nothing remains of the amended provision. It is a settled principle of statutory interpretation that a proviso cannot be construed to nullify the enacted clause. In Dr. Muhammad Anwar Kurd v. The State through Regional Accountability Bureau, Quetta (2011 SCMR 1560 at page 1578), the Court dilating on the effect of a proviso held as follows:--- "Thus, natural presumption of providing such proviso is to exclude the general application of the relevant section/subsection in the matter notified under the proviso. In the words of Hadayatullah, J. "As a general rule, a proviso is added to an enactment to qualify or create an exception in what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule" (see: AIR 1961 SC 1596). It is, therefore, understandable that proper function of the proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment. Thus, to say that proviso shall normally be construed not merely to limit or control, but nullifying the enactment and taking away completely a right conferred by the enactment, is incorrect.
36. The question whether the conferment of unguided power to an officer is ultra vires of the equality clause of the Constitution has been a subject of judicial review. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others (AIR 1991 SC 101), the Indian Supreme Court held:- "213. Seervai in his book 'Constitutional Law of India', Third Edition has stated at p. 119 that: .............. The Court are guided by the following rules in discharging their solemn duty to declare laws passed by a legislature unConstitutional:
(1) There is a presumption in favour of Constitutionality and a law will not be declared unConstitutional unless the case is so clear as to be free from doubt; "to doubt the Constitutionality of a law is to resolve it in favour of its validity."
(6) A Statute cannot be declared unConstitutional merely because in the opinion of the Court it violates one or more of the principles of liberty, or the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution."
214. On a proper consideration of the cases cited hereinbefore as well as the observations of Seervai in his book 'Constitutional Law of India' and also the meaning that has been given in the Australian Federal Constitutional Law by Colin Howard, it is clear and apparent that where any term has been used in the Act which per se seems to be without jurisdiction but can be read down in order to make it Constitutionally valid by separating and excluding the part which is invalid or by interpreting the word in such a fashion in order to make it Constitutionally valid and within jurisdiction of the legislature which passed the said enactment by reading down the provisions of the Act. This, however, does not under any circumstances mean that where the plain and . Literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulation that it confers arbitrary, uncanalised, unbridled, unrestricted power to terminate the services of a permanent employee without recording any reasons for the same and without adhering to the principles of natural justice and equality before the law as envisaged in Art. 14 of the Constitution, cannot be read down to save the said provision from Constitutional invalidity by bring or adding words in the said legislation such as saying that it implies that reasons for the order of termination have to be recorded."
37. The proviso under consideration is discriminatory and has been added not only to nullify the original context but also to protect with retrospective effect the orders and acts of the Delimitation Officers.
'Where a proviso can be given no sensible effect by reason of omissions or accidental mistakes in the use of words, it will be disregarded. Ordinarily, a proviso should not be construed to nullify the enacting clause. That is, a proviso is not to be so construed as to make if plainly repugnant to the body of the provision it limits, and a proviso which is directly repugnant to the . Purview or body of the act is inoperative and void." (Corpus Juris Secundum Volume 82, Page 661)
38. The discretion conferred on the Delimitation Officer in the proviso under challenge is unlimited and rather subjective. Such discretionary powers have been subject of critical comment. As Justice Wiliam Douglas of United States Supreme Court aptly remarked:- "Law has reached its finest moments when it has freed men from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered.1"
39. This amendment would have the effect of eroding the transparency and fairness of the election process as mandated under Article 218(3) of the Constitution. The proviso under challenge is ultra vires of the Act and the Constitution, and has rightly been so held.
40. This brings us to amendments made in section 18 whereby sub-sections (12) and (14) were added and substitution made in Schedule I Part-C which are reproduced hereinbelow:--- "Sub-section (12) & (14) added in Section 18: (12) There shall be a panel consisting of nine contesting candidates, including general members, women, peasant or labourer and non-Muslim for contesting election in a Union Council or a Union Committee, as the case may be: Provided that the panel so constituted may act through one of its members duly authorized by it:
(14) In case a political party or independent candidates fail to form a panel for contesting election, the nomination papers of all other independent candidates or nominees of a political party shall be deemed to have been rejected.
Substitution made in Schedule-I in Part-C Union Committee in Metropolitan Corporation Population between 10,000 to 50,000."
41. The learned High Court of Sindh struck down Section 4 of the Third Amendment Ordinance, 2013 through which sub-sections (12) & (14) have been added into Section 18 of the Sindh Local Government Act, 2013. The learned High Court was of the view as under:- 'Tyranny of Discretion ' by A.G. Noorani, Dawn, April 5, 2014 "The new sub-section provides that there shall be a panel consisting of nine contesting candidates, including general members, woman, peasant or labourer and non-Muslim for contesting election in a union council or a union committee as the case may be. The proviso attached to the sub-section envisages that the panel so constituted may act through one of its members duly authorized by it. A new sub-section (14) has also been inserted which provides that in case a political party or independent candidates fail to form a panel for contesting election the nomination papers of all other independent candidates or nominees of a political party shall be deemed to have been rejected. Through this amendment an independent candidate who may be so pious, competent having integrity and entitled to contest the local bodies election is ousted which is a sheer violation of Sections 35 and 36 of the 2013 Act in which no condition of panel is attached. It is also opposed to the Articles 17 and 25 of the Constitution. Unless such independent person or persons form a panel, they cannot contest the election which is in fact a unique type of system introduced first time to debar and infringe upon the fundamental right of a citizen of Pakistan. No lawful justification has been advanced by the learned A.G. Sindh through which this amendment may be defended except that through this exercise hug number of ballot papers can be saved. He further argued that in terms of Section 33 of the Sindh Local Government Act, '2013 the election of the local government shall be held on party basis hence the panel system was introduced. This arguments cannot be used as a tool or weapon to stifle an strangulate the fundamental rights of citizen of Pakistan. Perhaps the learned A.G.
Overlooked the proviso of Section 33 in which it is clearly provided that any candidate may contest election as independent candidate and may subsequently join any party. The introduction of election through panel is in conflict with the proviso of Section 33 in which the independent candidate can contest the election and thereafter, at his on will, he may or may not join any party.
Under Article 140A of the Constitution of Pakistan it is the responsibility of each Province to establish by law a Local Government System and devolve, political, administrative and financial responsibility and authority to the elected representatives of the local Government. We feel no hesitation to hold that sub-section (12) and (14) added in sections 18 of the Sindh Local Government Act, 2013 are violativ of Articles 17 and 25 of the Constitution of Pakistan.
58. The cumulative effect of the law laid down in the precedents cited by the learned counsel for the petitioners is already well-known and well-settled that if no standard is setup to avoid the violation of equality clause, the Court can judicially review to see whether or not the powers delegated has been exercised arbitrarily. When a provision of statute which is ex facie discriminatory and a provision thereof may be capable of being pressed into service in discriminatory manner the former provision would be liable to be struck down on the ground of violation of Article 25. The Court generally lean towards upholding the Constitutionality of a statute rather than destroy it unless such a statute is ex facie discriminatory or capable of discriminatory application or violates any provision of the Constitution it may be declared void ab initio since its inception. "
42. In terms of sub-section (12), a panel system has been introduced in the Union Council or a Union Committee and in subsection (14) it has been provided that if a political party or independent candidates fail 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. This 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 appears to be a clog on the fundamental right provisions of the Constitution (Article 25).
43. Human rights law makes a distinction between positive and negative rights, wherein positive rights usually obligation and negative rights usually oblige inaction. Similarly, many of the fundamental rights granted by our Constitution pertain to both positive and negative rights. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service.
44. Negative rights place a duty on the State not to interfere in certain areas where individuals have rights. The right holder can thereby exercise his right to act a certain way or not to act a certain way and can exercise his or her freedom of choice within the existing right. For instance, the freedom to profess religion and to manage religious institutions (Article 10A) encases the right to both profess a certain religion and not to do so. It also places a duty on the state not to interfere with the religious beliefs and ideologies of individuals. Similarly, the freedom of speech and expression (Article 19) encases the right of an individual to express his views and opinions and engage in dialogue without fear of misplaced sanctions and state intervention, but simultaneously possesses the right to remain silent. Negative rights extend to all civil and political rights and thereby also include the Freedom of Assembly and the Freedom of Association (Articles 16 and 17 respectively).
45. Positive Rights place a positive duty on the State and include social and economic rights. The Right to Education (Article 25A), protection of person and property (Article 9 and Article 24 respectively) and the promotion of social justice and eradication of social evils (Article 37) for instance, would be classified as positive rights. The arguments put forth by learned counsel for the appellant explaining the reasons for introducing 'the panel system however phrased in a manner that reflect positive rights in action, are discriminatory in practice and impede a greater number of fundamental rights than they propose to and.
46. To compel people to contest elections in panels of nine or not to contest at all is not only violative of Article 2A of the Constitution but puts a clog on their fundamental rights guaranteed under Articles 17 & 25 of the Constitution. This Court in Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) while dilating on this aspect of the Fundamental Rights observed as under:- "Article 17(2) visualizes plurality of political parties and so does the definition of the "Political Party" in the Act as plurality has a direct bearing to the Parliamentary system of Government. This right has a positive and a negative aspect. The words "right to form" in this sub-Article is not only confined to the commencement of association but the right include the right of continuance of the association as well. (See State of Madras v. U.G. Row, AIR 1952 SC 196). It also includes a right not to alter by law its composition so as to allow members other that those who have voluntarily joined to form the association without the consent of the members nor can any member be compelled to withdraw from the membership of the association. The right also implies the right to refuse to belong to any political party if a person so desires. Here it is also necessary to emphasize that the conjoined rights of an association if it is formed cannot be different from the rights which can be claimed by individual citizens with which the association is composed. (See Balakottah v. Union of India, AIR 1958 SC 232). Thus while the right to form political party is guaranteed under sub-Article (2) of Article 17, the right of the members to meet is guaranteed by Article 16, the right to move from place to place is guaranteed by Article 15, the right to freedom of speech and expression is guaranteed by Article 19 and so on. This is so because the fundamental rights are guaranteed to the citizens as such and the association can lay claim to the fundamental rights guaranteed by the different Articles solely on the basis of their being an aggregate of citizens composing the party. However, by forming a political party its members do not acquire any higher footing as regards other Fundamental Rights which as individual they could not claim. Further the political party while, exercising its freedom under different Articles is subject to reasonable restrictions imposed thereunder:
47. The learned High Court having found that the provisions of law relating to delimitation of constituencies of local government were ex-facie discriminatory and were being capable of being applied in a discriminatory manner, suggested that the delimitation should be carried `out by some impartial commission or body. The Court observed as follows:--- The crux of the matter in relation to the proper delimitation and keeping in view the other valid considerations and the criteria laid down for delimitation at large, we are of the firm view that instead of involving Deputy Commissioners being single person to carry out this serious exercise, an independent commission or impartial body be formed/ constituted with an independent and viable appellate forum to hear the appeals with equal opportunity to the stakeholders and then notify the final delimitation proposal, so that nobody should be given a chance to raise allegations of gerrymandering against the Government."
48. While considering the vires of law relating to delimitation of constituencies to the Local Government one has to keep in mind the importance of Local Government Institutions in the Constitutional scheme. Under the Constitution, the exercise of authority as a trust by the chosen representatives of the people has a strong moral content. The very Preamble of the Constitution inter a/ia ordains as under:- "Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; And whereas it is the will of the people of Pakistan to establish an order; Wherein the State shall exercise its powers and authority through the chosen representatives of the people;"
49. In terms of Article 7 of the Constitution, State has been defined as the "Federal Government, [Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess." Thus in the Constitutional scheme Local Government is the third tier of the State. Article 32 mandates the State to promote Local Government Institutions, which reads as follows:--- "The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women."
50. Article 140A(2) provides for vesting of all powers to hold local government elections to the Election Commission of Pakistan. Article 140A(1) stipulates as follows:--- "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." (Emphasis is supplied).
51. The Constitution-makers for the first time vested the power to hold elections to the local government to the Election Commission of Pakistan because the previous experiences of holding and conducting elections by the Provincial Governments were controversial. The fairness of elections many a times used to be eroded by allegations and counter-allegations of rigging.
Although laws existed to try the election related offences (The Representation of the People Act, 1976) yet the Constitution-makers were of the view that the task of holding the elections to the local government be entrusted to Election Commission of Pakistan. Because it is a neutral body and is under a Constitutional mandate to "organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against." (Article 218(3)). The Election Commission of Pakistan is a Federal Institution which does not represent any of the Governments. The persons who run the Institution are appointed on account of their neutrality, integrity and impeccable reputation and in appointment of its members; all the Federating Units are represented. It was because of this neutrality and credibility of the Election Commission of Pakistan that even in the Sindh Local Government Act, 2013 it has been given an oversight. Article 34(2) provides that the "Government shall, in consultation with the Election Commission, make an announcement of the date or dates on which the election for the Councils shall be conducted in the Province", "Section 34(3) provides that "the Election Commission of Pakistan shall organize and conduct the elections and to make necessary arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and the corrupt practices are guarded against"; Section 38 mandates that "it shall be the duty of all executive authorities in the Province to assist the Election Commission of Pakistan in the discharge of its functions"; Section 39(2) provides that "the electoral rolls for the Councils elections shall be prepared by the Election Commission of Pakistan in such manner as it may deem appropriate and the electoral rolls shall not be invalid by reason of any erroneous description in the electoral rolls of any person listed or of an omission of the name of any person entitled to be enrolled or of inclusion of the name of any person not so entitled; by virtue of Section 40 it is for the Election Commission of Pakistan to appoint Returning Officers and Assistant Returning Officers; the Returning Officers are mandated to establish in each constituency polling stations according to list sent by the Election Commission of Pakistan; the Election Commission of Pakistan has to provide electoral rolls of the constituency to the Returning Officer (Section 43) and in addition to the above it has been provided that the Election Commission of Pakistan shall in relation to the election of local councils shall exercise "such other powers and perform such other functions as may be prescribed" (Section 44); under Section 47 it is Election Commission of Pakistan which has to appoint Election Tribunal to hear an Election Petition.
52. Article 218 stipulates that an Election Commission shall be constituted in accordance with this Article for purposes of election to. Both Houses of Majlis-eShoora, Provincial Assemblies "and for election to such other public offices as may be specified by law". The expressions "to hold elections" or "shall be held" (Article 140A(2) and "to organize and conduct elections" (Article 218(3) are significant. To "hold elections" is susceptible to a wider meaning than "to conduct" elections. "To hold" and "to organize" elections mean to take all the necessary steps to hold elections. In State of Gujrat v. Jamnadas G. Pabri and Ors. (AIR 1974 SC 2233), the meaning of the term "to hold elections" was a moot point and the statute (The Panchayats Act, 1961) itself had not spelt its were import, the Court held:--- "19 "Now it is well-settled that if the language of a statute is susceptible of two constructions, the one which fulfils its object is to be preferred to the alternative which frustrates it. This canon is of particular significance while interpreting an emergency measure of the kind before us. In a recent English case Canon Street Ltd. Vs. Singer & Friedlander Ltd. (1974) 2 W.L.R. 545. While considering the uncertain language in a statutory instrument made under an Act with the long title "Any Act to authorize measures to counter inflation." Meggary J. Refused to put on it a construction which would make the countering of inflation "so capricious and easily escapable. "20 In the provision under consideration the phrase "to hold elections" can be understood both in a were and a narrow sense. Its were connotation will include all steps such as the delimitation of constituencies, the compilation of electoral rolls etc. Which are a necessary vreliminar to the actual conduct of elections. In the restricted sense this hrase would of elections. Again, the word "expedient" used in this provision, has several shades of meaning. In one dictionary sense, "expedient" (adj) means "apt and suitable to the end in view", "practical and efficient"; "politic"; "profitable" "advisable", "fit, proper and suitable to the circumstances of the case". In another shade, it means a device "characterized by mere utility rather than principle, conducive to a special advantage rather than to what is universally right" (see Webster's New International Dictionary)." (Emphasis is supplied)
53. The terms "To organize and conduct" (Article 218(3) as per Black's Law Dictionary, Sixth Edition, mean:- "Conduct, v. To manage; direct; lead; have direction; carry on; regulate; do business. Scholz v. Leuer, 7 Wash. 2d 76, 109 P. 2d 294, 301 Organize, to establish or furnish with organs; to systematize; to put into working order; to arrange in order for the normal exercise of its appropriate functions. City of Beaumont v. City of Beaumont Independent School Dist., Tex. Civ. App., 164 S.W. 2d 753, 756."
54. This Court in Workers Party Pakistan through Akhtar Hussain, Advocate, General Secretary & 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), while adverting to the powers and functions of the Election Commission of Pakistan particularly after Eighteenth Amendment has held as follows:--- "40. 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 "were 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.
41. The Election Commission may also exercise its powers in anticipation of an ill that may have the effect of rendering the election unfair, In the case titled as In Re; Petition filed by Syed Qaim ALI Shai Jallani (PLD 1991 Jour. 41) the Elections Commission exercised its powers under Article 218 (3) preemptively, by making all necessary arrangements to ensure that preemptively, by making all necessary arrangements to vote. This case implies that where a violation of the standards mentioned in Article 218 (3) has not as yet taken place, the Election Commission is legally empowered under Article 218(3) to exercise its powers preemptively in order to avoid a violation of these standards. Furhtermore, Mst. Qamar Sultana v. Public at Large (1989 MLD 360) and in Re: Complaint of Malpractices in Constituency No. NA-57, Sargodha-V (Supra) both reinforce the argument that the Election Commission is fully empowered by Article 218(3) to make 'such orders as may in its opinion be necessary for ensuring that the election is fair, honest etc.' These decisions recognize that the Election Commission enjoys broad powers not only to take pre-emotive action but also to pass any and all orders necessary to ensure that the standards of 'honesty' justness and fairness' mentioned in Article 218(3) are met.
42. The Parliament has framed different laws to effectuate the above Constitutional provision and to regulate elections to the National and Provincial Assemblies. ROPA reiterates and further vests the Election Commission with the responsibilities and powers to, inter alia, regulate and check intra-party affairs and actions taken by candidates and parties in anticipation of and on Election Day, resolve all election disputes, declare the election void and to award punishments for violating relevant election laws. In appreciation of the arduousness of its task, section 5(2) of ROPA further empowers the Election Commission to "require any person or authority to perform such functions or render such assistance for the purposes of this Act as it may direct". The Election Commission may, under section 103(c) of ROPA also "issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act and the rules". Article 220 of the Constitution also directs the Federal and Provincial machinery to assist the Election Commission in fulfilling its Constitutional responsibilities. The law, therefore, entrusts the Election Commission with exclusive, broad and extensive powers to attend to all issues related directly and ancillary to the election process.
43. Article 218(3) also empowers the Election Commission to ensure that the election process does not suffer from any corrupt and/or illegal practices. Sections 78, 79, 80, 80-A, 81 and 83 of ROPA comprehensively define the terms "corrupt practices" and "illegal practices". ROPA in sections 82, 99 and 100 further elaborates the consequences of such practices and enunciate that the same form a sufficient basis for the Election Commission to, inter alia, imprison, fine and disqualify those who violate them. These provisions, therefore, subsume all those impugned activities as cognizable by the Election Commission. Similarly, Section 103(a) of ROPA instructs the Election Commission to ensure a "fair election". In doing so it implies that "large scale malpractices including coercion, intimidation and pressures, prevailing at the election" would negate the 'fairness' elections are to embody. While sections 78, 79, 80, 80-A, 81 and 83 specify activities that the Election Commission can regulate and check under Article 218(3), section 103(a), substantially enhances this defined spectrum of cognizable activities and reinforces the obligation to check them. In section 103(c) section (sic) it empowers the Election Commission to issue instructions, exercise its powers and make orders to effectuate the said standard.
44. While there is no cavil with the proposition that the Election Commission stands as an independent and fully empowered Constitutional body, the 18th and 20th Constitutional Amendments, have substantially enhanced the degree of independence and the scope of powers enjoyed by the Election Commission. Prior to 18th Constitutional Amendment, the Commission comprised the Chief Election Commissioner and two retired Judges as members thereof. Vide the 18th Amendment, the strength of the members has been increased from two to four, with the additional requirement that each of the members be a Judge of High Court of each Province, duly appointed by the President as per prescribed procedure provided for appointment of the Commissioner in clauses (2)(a) & (b) of Article 218(1) of the Constitution. The entrustment of greater responsibility and the enhancement of its strength are part of an effort fully to equip the Commission to discharge its broad set of responsibilities. These also reflect a growing trust in the Commission to act independently and without influence in conducting and organizing elections "fairly, honestly, justly and in accordance with law". In the parliamentary system of government a Constitutionally independent and empowered Election Commission rests as one of the foundational stones of a democratic setup. In the past, the Election Commission has succumbed to external influence and I failed to discharge its responsibilities successfully. The inadequacy of the Commission's effort in organizing and conducting the election to the above standards has had detrimental repercussions for the democratic system in Pakistan. Not only has it undermined the legitimacy of the elections and the claim of the winning party to form government, but has also, by disregarding express Constitutional dictates regulating the same, devastated the trust and faith reposed by the citizenry in the rule of law and supremacy of the Constitution. This is why Pakistan has witnessed political parties, individual candidates, as well as the citizenry, reject and denounce some of the election results. The rigging of elections was cited as a major ground for the imposition of martial law in the country in 1977, which was unfortunately validated by the Supreme Court.
Consequently, an unConstitutional order was imposed on the people of Pakistan with the false hope of holding fair and free elections within 90 days. The solemn commitment made by General Ziaul Haq, Chief Martial Law Administrator, however, was never honored and the people of Pakistan remained subject to an un-Constitutional regime for nearly 11 years. In light of the powers and independence that the Election Commission enjoys today, such an unfortunate abuse of power and disregard of the Constitutional dictate to establish and preserve democracy seems impossible.
45......................................
46. It is of utmost importance that the Election Commission executes its functions and discharges its responsibilities effectively, efficiently and in letter and in spirit. By declaring that the representatives of the people "shall be elected by direct and free vote, in accordance with law" in Article 51(6)(a), the Constitution identifies 'elections' as the first and an integral step in effectuating the aforesaid Constitutional dictates. At page 254 of the judgment given in the Al-Jehad Trust v.
Federation of Pakistan (PLD 1997 SC 84), this Court commented on the important role of the Election Commission and observed that by fulfilling its mandated duties and responsibilities, the Election Commission essentially "give(s) birth to a body/institution of the nation, called Parliament". The effective fulfilment and honest discharge of this tremendous responsibility would lend greater legitimacy to an elected democratic government and give effect to its Constitutional mandate. It is, therefore, imperative that the Election Commission employs its extensive powers to regulate the election process. Any shortfall in the discharge of its responsibilities would violate express dictates of our Constitution; devastate the efficacy of our Constitutional order and the envisioned operation of the State. Therefore, in appropriate circumstances, the Election Commission may be directed to fulfill its Constitutional and legislative dictates by inter- alia bringing all relevant political practices into conformity with the Constitution and the law. "
55. The process of delimitation of constituencies for an election is one of the important steps to organize and conduct elections because it is 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.
56. Although in terms of Article 140A(2) of the Constitution, the Election Commission has been entrusted with the task of holding elections to the local government, but apparently there is no specific corresponding provision in the Constitution regarding laws relating to delimitation of constituencies for the Local Government. Some may argue that this is a Constitutional void.
However, a close reading of Article 222(b) would indicate that it does not relate to delimitation of constituencies of National and Provincial Assemblies alone rather it is open-ended and construed harmoniously with the other relevant provisions of the Constitution, would include the making of appropriate laws by the Parliament for delimitation of constituencies for the local governments.
Law making with regard to other steps required to conduct elections "honestly, justly, fairly" are already catered for i.e. Preparation of electoral rolls (Article 222(c), conduct of elections and election petitions (222(d) and relating to corrupt practices (212(e)).
57. The Constitutional command that "it shall be the duty of the Election Commission to organize and conduct the election"; (Article 218(3) is rather comprehensive and encompasses all the steps necessary to conduct elections "honestly, justly and fairly". It appears, the Constitution makers were aware of the earlier judgments of this Court whereby it had been held that the election process commences from the issue of notification of election schedule Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396). That is why Article 218(3) has been so worded. But facts in the Javaid Hashmi (Supra) were distinct and the expression "election" has been interpreted in the context of those facts. In the said case, the judgment was delivered with reference to Article 225 of the Constitution and the Representation of the People Act, 1976. The said Article of the Constitution excluded the jurisdiction of all Courts insofar as the election disputes were concerned and the jurisdiction instead was conferred on the Tribunal and the appeal lay before the Supreme Court. The Constitutional intent in this Article is not to distract a candidate from the election process and if there is allegation of rigging/complaint, the remedy was provided in the shape of a petition before the Tribunal, after the election is over.
58. We have considered the argument of appellant's learned counsel that the Majlis-e-Shoora can make laws only as mandated under the Constitution and qua the subjects enumerated in Item No. 41 of the Fourth Schedule Part-I of the Constitution, which reads as follows: - "41. Elections to the office of President, to the National Assembly, the Senate and the Provincial Assemblies; Chief Election Commissioner and Election Commissions. "
59. However, the Constitutional intent has to be gathered from the body of the Constitution as well.
Article 222 provides that "subject to the Constitution, [Ma]lis-e-Shoora (Parliament)] may by law provide for "(a).......... .(b) the delimitation of constituencies by the Election Commission." The delimitation of constituencies is one of the foundational steps towards that end. This has to be interpreted in proper perspective so as to include law making with reference to Article 140A(2) of the Constitution. It is significant to note that Article 222(b) stipulates that an Act of the Federal Legislature shall provide for the delimitation of constituencies by Election Commission of Pakistan and it does not exclude the local government from its ambit.
60. The Constitution of a country is a living organism and a particular provision, a term or word has to be interpreted dynamically and purposively with a view to achieve the Constitutional intent.
61. In Hanrietta Muir Edwards and others vs. Attorney General for Canada and others (J.C. 1929, 1930 Appeal Cases), the question arose whether the expression 'qualified persons' used in Section 24 of the British North America Act, 1867 would include a woman because it was not gender specific. The Court of Appeal gave a wider meaning to the expression "qualified person" and held that it would include members of both the male and female sex. It observed as follows:--- "A heavy burden lies on an appellant who seeks to set aside a unanimous judgment of the Supreme Court, and this Board will only set aside such a decision after convincing argument and anxious consideration, but having regard: (1) To the object of the Act namely, to provide a Constitution for Canada, a responsible and developing State;
(2) that the word 'person' is ambiguous, and may include members of either sex; (3) that there are sections in the Act above referred to which show that in some cases the word 'person' must include females; (4) that in some sections the words 'male persons" are expressly used when it is desired to confine the matter in issue to males; and (5) to the provisions of the Interpretation Act; their Lordships have come to the conclusion that the word "persons" in s. 24 includes members both of the male and female sex, and that, therefore, the question propounded by the Governor General should be answered in the affirmative, and that women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly. "
62. Since Article 222(b) does not exclude the delimitation of constituencies for local government, and as the body of the Constitution specifies the appropriate legislature which should pass the law, any reference to the provisions of the legislative entries contained in Item 4 of the Fourth Schedule are of no consequence. There are similar provisions in the Constitution qua which there is no corresponding entry in the Federal Legislative List. For example, Article 6 clearly provides that the Majlis-e-Shoora (Parliament) will pass the law for high treason. But there is no corresponding entry in the 4th Schedule prescribing the subject of high treason in the Federal Legislative List. Article 142(c) could not be pressed into service to say that since the 4th Schedule is silent, in terms of Article 142(c), the Provincial Legislature would legislate in respect of high treason. When the main body of the Constitution provides for the competent legislature it is not necessary to look into the legislative list. Under Article 87(2), the Majlis-e-Shoora (Parliament) may enact law for conditions of service of secretarial staff, whereas in this regard there is no corresponding entry in the Federal Legislative List; that Article 237 empowers the Majlis-e-Shoora (Parliament) to make laws for indemnity; again there is no entry to that effect in the Federal Legislative List; that under Article 253 the Majlis-e-Shoora (Parliament) may make laws pertaining to maximum limits as to property etc.; however, there is no corresponding entry in the Federal Legislative List; Article 146(2) states that the Majlis-e-Shoora (Parliament) may enact laws to confer powers on Provinces or their officers, but there is no entry in this regard in the Federal Legislative List; that under proviso to clause (2) of Article 212, the Majlis-e-Shoora (Parliament) may make laws in relation to administrative tribunals, however, there is no corresponding entry in the Federal Legislative List; that even though "electricity falls under entry 4 of the Part II of the Federal Legislative List, under Article 1 57(2) (b) the Provincial Government is empowered to levy tax on consumption of electricity within the Province and that entry 58 of the Part I of the Federal Legislative List, clearly provides that the matters which under the Constitution are within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation, would fall under the domain of the Federal Legislature. In the instant case, as explained above, under the relevant Articles of the Constitution, the subject-matters of delimitation and conduct of Local Government Elections fall under the domain of Parliament/Federal Legislature.
63. Fair elections would mean fair representation and delimitation of constituencies is a foundational step towards that end. In State of Madhya Pradesh &, others v. Devilal (AIR 1985 SC 434), the Court commenting on the significance of this step held: "The whole purpose of delimitation of a block into constituencies under sub-section (1) of section 106 of the Act is to ensure that every citizen should get a fair representation to the Gram Panchayat and in turn to the Janapada Panchayat and the Zila Panchayat. The result of any election under a majority system depends in fact not only on the way people vote but on the way their votes are distributed among the constituencies." (Emphasis is supplied).
64. In terms of section 3 of the Sindh Local Government Act, the Provincial Government has been empowered to delimit the constituencies of the Local Government in Sindh. Being one of the fundamental steps to hold fair elections, it has to be carried out by a body which is neutral and credible. That is why the task of delimitation of constituencies for National and Provincial Assemblies has been entrusted to the Election Commission of Pakistan (Delimitation of Constituencies) Act, 1974. Now that the task of holding elections to local governments has been entrusted to Election Commission of Pakistan by a Constitutional amendment (Article 140A), the Constitutional provision relating to delimitation of constituencies has to be accorded purposive construction. In these circumstances we are persuaded to hold that the power of Majlis-e-Shoora to provide by law for "the delimitation of constituencies by the Election Commission" would include the delimitation of constituencies of local government.
SUBSTITUTION MADE INSCHEDULE-I IN PART-C
65. The population limit/figure of Union Council in the Metropolitan Corporation was earlier between 40,000 to 50,000 but by the Sindh Local Government (Third Amendment) Ordinance, 2013, dated 13.12.2013 by virtue of Section 8 of Schedule I in Part 'C' was amended and under the heading Union Council in Metropolitan Corporation for the figure 40,000 to 50,000, the figures 10,000 to 50,000 were substituted.
66. The variation in constituency was changed through the amendment referred to in the preceding paragraph which is violative of the principle of 'one man one vote' and equality of representation. A combined reading of Articles 17, 18, 19 & 25 read with Article 51(2) of the Constitution could indicate that the right to vote is a fundamental right and not a statutory right.
We tend to agree with learned amicus curiae that without the right to vote, the right to join a political party would become illusionary. In James P. Wesberry vs. Carl E. Sanders (1964) 376 US 1) the Court while dilating upon the sanctity of right to vote observed as under:- "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges [376 U.S. 1, 18] this right."
67. The Court reiterated the principle of equality of votes in constituencies by observing as under:- "While it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. That is the high standard of justice and common sense which the Founders set for us."
68. Equal rights to engage and participate in public affairs is one of the fundamental values of democracy. In PLD 1993 SC 373 (Nawaz Sharifs case), Ajmal Mian, J. As he then was, in Para 8 observed as follows:--- "8. In my view, the political rights and the political justice are interlinked with each other. The former encompasses the right to participate directly or indirectly in the establishment or management of Government. These rights are delineated and demarcated in the Constitution of every country, whereas the latter caters for providing in the Constitution equal rights to engage and participate in the public affairs. It envisages that the Constitution should guarantee equal liberty and provide an efficient and honest machinery/mechanism through which people can elect their representatives in a manner which should ensure that ........
(a) each vote has approximately the same weight in determining the outcome of the elections;
(b) people similarly endowed and motivated should have roughly the same chance of attaining political authority irrespective of their economic and social class;
(c) the majority should get into owner. "
69. In the same case, Saad Saood Jan, J. At page 646F held as follows:--- "There seems little doubt that the paramount consideration before the Constitution-makers was that no section of the citizenry no matter how small it might be, should be deprived of equal participation."
70. In Wesbery v. Sanders [376 US 1(1964)], the Supreme Court required to draw their congressional districts so that 'as nearly as is practicable one man's one vote in a congressional election is to be worth as much as another's.
71. In Kirkpatrick v. Preisler [394 US 526 (1969)], the Court struck down a congressional districting plan where 'the most populous district was 3.13% above the mathematical ideal, and the least populous was 2.84% below'. The Court found no justification for even this small deviation and explicitly rejected any argument that there is any variance small enough to/be considered de minimis. Moreover, it was no justificatron that the State attempted to avoid fragmentation political sub-divisions by drawing the Congressional districts along existing county lines or other political subdivisions. In districting for the House of Representatives the State must 'make a good-faith effort to achieve precise mathematical equality.'
72. The need for a neutral body to carry out the delimitation exercise is imperative because there are instances when in the said process the voting strength of a community, a minority or an ethnic group is diluted. This would be violative of the equality clause enshrined in the Constitution and is known as "gerrymandering". The learned Bench has shared their research therein the context in the impugned judgment and it has been held:--- "42............ And what we find out through a document hosted on website that in the process of setting electoral districts, gerrymandering is a practice that attempts to establish a political advantage for a particular party or group by manipulating district boundaries to create partisan advantaged districts. The resulting district is known as a gerrymander, however, that word can also refer to the process. When used to allege that a given party is gaining disproportionate power, the term gerrymandering has negative connotations. In addition to its use achieving desired electoral results for a particular party, gerrymandering may be used to help or higher a particular demographic, such as a political, ethnic, racial, linguistic, religious, or class group. The word gerrymander (originally written Gerrymander) was used for the first time in the Boston Gazette on 26th March, 1812. The word was created in reaction to a redrawing of Massachusetts state senate election districts under the then governor Elbridge Gerry. In 1812, Governor Gerry signed a bill that redistricted Massachusetts to benefit his Democratic-Republican Party. When mapped, one of the contorted districts in the Boston area was said to resemble the shape of a salamander.
Gerrymander was a portmanteau of the governor's last name and the word salamander. The redistricting was a notable success. In the 1812 election, both the Massachusetts House and governorship were won by Federalists by a comfortable margin (costing Gerry his seat), but the senate remained firmly in Democratic Republican hands. The author of the term gerrymander may never be definitively established. Historians widely believe that the Federalist newspaper editors Nathan Hale, and Benjamin and John Russell were the instigators, but the historical record does not have definitive evidence as to who created or uttered the word for the first time. Some political science research suggests that, contrary to common belief, gerrymandering does not decrease electoral competition, and can even increase it. Some claim that, rather than packing the voters of their party into uncompetitive districts, party leaders tend to prefer to spread their party's voters into multiple districts, so that their party can win a larger number of races. Gerrymandering can have an impact on campaign costs for district elections. If districts become increasingly stretched out, candidates must pay increased costs for transportation and trying to develop and present campaign advertising across a district. Gerrymandering may be advocated to improve representation within the legislature among otherwise underrepresented minority groups by packing them into a single district. This can be controversial, as it may lead to those groups' remaining marginalized in the government as they become confined to a single district.
Candidates outside that district no longer need to represent them to win elections. Another way to avoid gerrymandering is simply to stop redistricting altogether and use existing political boundaries such as state, county, or provincial lines. While this prevents future gerrymandering, any existing advantage may become deeply ingrained. The United States Senate, for instance, has more competitive elections than the House of Representatives due to the use of existing state borders rather than gerrymandered districts Senators are elected by their entire state, while Representatives are elected in legislatively drawn districts. Ref: http: / / en/ Wikipedia. Org/ wiki/ Gerrymandering.
73. In Mobile v. Bolden [446 US 55 (1980)], the US Supreme Court dilating on a case of gerrymandering observed:--- "A district map which meets the one person, one vote principle and has the effect of diluting the voting strength of identifiable racial minorities will be upheld when the district lines were drawn on the basis of some neutral criteria rather than for the purpose of maintaining or creating a racially discriminatory voting system."
74. In Davis v. Bandemer [(478 US 109 (1986)], the US Supreme Court held as follows:--- "that claims of unConstitutional political gerrymandering were not political questions".......................
That a claim a legislative districting map was politically gerrymandered so as to seriously dilute or eliminate the voting power of persons affiliated with a political party, was an equal protection issue that the Courts could resolve."
75. Mindful of Court's Constitutional mandate and institutional constraint in a system based on trichotomy of powers, the Court would restrain itself from making any declaration which amounts to rewriting the law. However, when it comes to the conclusion that a law or certain provision therein is not in conformity with the Constitutional provisions and declares it ultra vires of the Constitution, it can issue appropriate directions to the Government to, bring the law in conformity with those provisions. In Government of Baluchistan through Additional Chief Secretary v. Azizullah.
Memon (PLD 1993 SC 341), certain provisions of Criminal Law (Special Provisions) Ordinance (II of 1968) were challenged and the Court while maintaining the judgment of the High Court of Baluchistan directed the Government as follows:--- "17.............................
(i) to issue necessary notification in terms of sub- section (2) of section 1 of Ordinance XII of 1972 for enforcing the aforesaid Ordinance by creating posts of and separately appointing Judicial Magistrates and Executive Magistrates and to place Judicial Magistrates under the administrative control of the High Court within a period of three months;
(ii) to take necessary steps as required by the Constitution to amend and implement laws and rules relating to Courts, judiciary and its officers and lower staff to bring them in conformity with Articles 9, 25, 175 and 203 of the Constitution within a period of six months."
76. In Al-Jehad Trust through Habibul Wahab AlKhairi Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad (1999 SCMR 1379), the Court inter alia issued similar directions to the government to take legislative and administrative measures in terms as follows:--- "25...........................
(A)...............................
(i)..................................
(ii) to issue necessary Notification under sub-rule (2) of Rule 2 of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1978 and Rule 4 of the Sindh Civil Services (Appointment, Promotion and Transfer) Rules, 1974, notifying the High Court as the Authority within a period of sixty days.
(i.e) To initiate legislative measures within a period of six months in order to make necessary amendments in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C., Sindh Civil Servants Act, 1973, Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and in the other enactments to make the same in conformity with above Articles 175 and 203 of the Constitution.
(B)...................................
77. In Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), the Court directed the Federal Government to promulgate appropriate legislative instrument.
78. Before we part with the judgment, we may like to observe that the elections to Local Governments in Baluchistan were held on 7.12.2013 on the basis of delimitation of constituencies carried out by the Provincial Government in terms of the Baluchistan Local Government Act, 2010.
This judgment is prospective and shall not, in any manner, affect the validity of the said elections.
79. For what has been discussed above, while dismissing the appeals/petitions filed by the Government of Sindh, we are persuaded to direct the Federal Government to make necessary enactments to empower the Election Commission of Pakistan to carry out the delimitation of constituencies of local governments. The Government of Sindh is also directed to make necessary corresponding amendments in the Sindh Local Government Act, 2013. These are the detailed reasons for our short order dated 20.3.2014 which is reproduced hereinbelow:--- "We have heard learned counsel for the appellants, for the respondents, learned Advocate General Sindh, learned Attorney General for Pakistan and learned amici curiae.
For reasons to be recorded later in the detailed judgment, we hold, declare and direct as under:---
(i) that the power to hold elections of the Local Government stand vested in the Election Commission of Pakistan in terms of Article 140A of the Constitution of Islamic Republic of Pakistan.
The Election Commission of Pakistan has been mandated to "organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against"
(Article 218(3) of the Constitution);
(ii) that we uphold para 60(e) of the judgment of the Sindh High Court dated 26.12.2013; (i.e) that since the delimitation of constituencies of the Local Government is part of the process of organizing and holding elections honestly, justly and fairly which is the Constitutional mandate of the Election Commission of Pakistan, the power to carry out such delimitation should vest with the Election Commission of Pakistan;
(iv) that as the holding of election of Local Government has been delayed for more than nine years, which is violative of the Constitutional command, we are persuaded to direct the Governments, Federal and Provincial (of Sindh) to carry out appropriate amendments/legislation to empower the Election Commission of Pakistan to initiate and carry out the process of delimitation of constituencies for the Local Government Elections. This exercise should be completed within a period office months from today and the Election Commission of Pakistan 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 this order. The Election Commission of Pakistan shall further ensure that the announcement of election schedule and the process of holding it is complete by or before 15th of November, 2014. The cases stands disposed of in terms noted above.