' FAQIR MUHAMMAD KHOKHAR, J.---This order shall dispose of Intra-Court Appeals Nos.379, 380, 381 and 382 of 1998 as they call in question the same impugned order, dated 2-5-1998 passed by the learned Single Judge of this Court in Writ Petitions Nos.4417/1998, 4006/983330/1998 and 4753/1998.
2. The Punjab Ordinance No,1 of 1998 called the Punjab Local Government (Amendment) Ordinance, 1998, was promulgated on 3-2-1998 by the Governor of the Punjab, under Article 128 of the Constitution of Islamic Republic of Pakistan. The respondents called in question the vires of the said Ordinance particularly the amended provisions of section 3(xxvi-a), section 6-A, section 9-B, subsection (2) of section 12, section 12-B and section 49-A of the Punjab Local Government Ordinance, 1979. The said provisions were declared to be ultra vires the Constitutions and were struck down by the impugned order, dated 2-5-1998 passed by the learned Single Judge of this Court.
3. The learned Advocate-General, Punjab, argued that the Panchayat System by way of nominating members called Sarpanches had been introduced with a view to create harmony at the grass root level so that the charged atmosphere in a rural society could be diffused. It was further argued that the measures taken by Ordinance No,I of 1998 were in the welfare of the people which was supreme. The support was sought from the maxim salus populi est suprema lex. It was also submitted that there was no vested right of participating in the election to the local bodies. It was a policy matter which had been taken by the Government in the best interest of the people of the Province of Punjab.
' The political questions were not justiciable. There was no discrimination if the members of the Zila Councils were elected but that of the Panchayats and the Union Councils were nominated by the Government.
4. We have heard the learned Advocate-General, Punjab, at length and have also carefully gone through the impugned order. We noticed that the impugned Ordinance No,I of 1998 was not passed as an Act by the Provincial Assembly during three months. The said Ordinance stands repealed by virtue of the provisions of Article 128 read with Article 89 of the Constitution of Islamic Republic of Pakistan. The impugned Ordinance was an urgent legislation. The consequences of such legislation have been elaborately laid down in the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66) and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602).
5. The Parichayat System in the rural areas can be seen in its historical perspective. It was as back as in 1907 that the British Government appointed a Royal Commission known as the Decentralization Commission for India headed by Lord Hob House. The Commission emphasised the revival of the Panchayats for the villages. It was recommended that the members should be elected with the village Headman as ex officio Chairman of the village Pachayat. The Commission also recommended the constitution of the Boards for rural areas at the Sub-District level. Even for the Municipal Committees, the Commission favoured the proposal for the election of the members and the Chairman. The recommendations of the Commission were generally accepted by the British Government as well as Lord Ripon, Governor-General-in-Council for India. The Punjab Panchayats Act, 1912, was introduced whereunaer the members of the village Panchayat called the Panches and its Chairman called the Sarpanch were popularly elected. Even under the later Punjab Village Panchayat Acts of the 1921 and 1939, all the members of the Pachayat were elected. Thus, in the early stages of the local self-Government in the sub-continent, the constitution of the local bodies through the system of elections as opposed to nomination, was in vogue. During Martial Law period of late General Muhammad Ayub Khan, the basic democratic were the elected members of the Union Councils. Under the Punjab Local Government Ordinance, 1979, the Martial Law regime did not consider it proper to do away with the system of elections and democracy at the grass root level of the Union Councils. It is too late in the day to introduce a system which is opposed to the very genius of our nation if disregard of Article 32 of the Constitution.
6. Section 12-B as introduced by the impugned Ordinance provides that members of a Panchayat shall be nominated by the Government and the Sarpanches of all the Panchayats in the area of a Union Council shall be ex-officio members of the Union Council. Subsection (2) of section 12 provides that member of the Zila Council shall be ex officio Chairman of the Union Council and that the Chairman of the Panchayat shall also be nominated by the Government. It is clear that no guidelines or parameters have been provided for the Government in making the nomination of the Sarpanch of the Panchayat. The Government is free to pick and choose any person of its choice without any qualifications. The discretion of the Government has not been structured which is absolute and arbitrary. The impugned Ordinance is ex facie discriminatory. It is also capable of being administered in a discriminatory and arbitrary manner in violation of Article 25 of the Constitution of Pakistan which guarantees the equality before law and equal protection of laws. In the case of Waris Meah v. The State and another (PLD 1957 SC (Pak.) 157), the provisions of the Foreign Exchange Regulation Act, 1947, as amended by the Foreign Exchange Regulation (Amendment) Act, 1956, were examined. The Central Government or the State Bank was empowered to determine whether an offender under the said Act was to be tried under the ordinary law or by an Adjudication Officer pr by a Tribunal constituted under the said Act. It was held as follows: "The amending Act makes the principal Act ex facie discriminatory and infringes the subjects' fundamental right to equal protection of the law guaranteed by Article 5 of the Constitution of Pakistan.
' The Act confers discretion of a very wide character upon stated authorities, to act in relation to subjects falling within the same class in three different modes varying greatly in severity. By furnishing no guidance whatsoever in regard to the exercise of this discretion, the Act, on the one hand, leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and on the other, prevents him from, invoking his fundamental right to equality of treatment under the Constitution.
' Held, further, that the scope of the unguided discretion was too great to permit of application of the principle that equality was not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice must always be, in the judicial view-point, arbitrary to a greater or less degree. The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5(1) of the Constitution."
' In the case of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), it was laid down that the vires of an Act could be challenged if its provisions were ex facie discriminatory in which case actual proof of discriminatory treatment was not to be shown.
7. Article 32 in Chapter 2 (Principles of Policy) of the Constitution B provides that 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. The Principles of Policy as contained in the Constitution may not be judicially enforceable in stricto senso. By virtue of Article 30 of the Constitution, the validity of an action or of a law may not be called in question on the ground that it is not in accordance with the Principles of Policy.
Nevertheless, the importance of the Principles of Policy has been underlined by the superior judiciary as an aid to the interpretations of the Constitution and the law. In the case of Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lahore 930), it was laid down that the mandate cottained in the Principles of Policy of the Constitution was to be carried out by the State as defined in Article 7 as also by other organs, authorities and institutions which necessarily included Judiciary, particularly superior Judiciary. The definition of State as found in Articles 7 and 29 of the Constitution did not in any way restrict the duty and responsibility of the Judiciary of Pakistan to carry out the mandate. The other authorities, etc., are not prohibited from carrying out the Principles of Policy. In the case of Balwant Raj v. The Union of India (AIR 1968 Allahabad 14), it was held that the Courts may look at the Principles of Policy in interpreting the provisions of the Constitution and apply the doctrine of harmonious construction while considering its different justiciable provisions. The Principles of Policy can also be utilised in the matter of statutory construction including subordinate legislation. Reference may usefully be made to the cases of Zaheeruddin and others v. The State and others (1993 SCMR 1718), Mirza Jawad Beg v. The State (1981 SCMR 341), Pir Sabir Shah (supra) and Ahmed Nawaz alias Babal Khan Jakhrani v. The State and another (PLD 1998 Karachi 180).
8. Since the vires of the impugned legislation were challenged on the touchstone of the Constitution, the question of non-justiciable of the political questions did not arise in this case.
When a case predominantly involves the determination of a question of Constitutional law, the Courts do not normally stay their hands on the ground that it may also have some political overtones. See the cases of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan (PLD 1989 SC 166) and Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). The concept of maxim salus populi est suprema lex has already been clarified by the Hon'ble Suprerire Court of Pakistan in the case of Miss Asma Jillani v. Government of the Punjab (PLD 1972 SC 139).
9. No other point was canvassed before us by the learned Advocate-General, Punjab.
10. For the foregoing reasons, we do not find any merit in these appeals which are dismissed in limine. The elections to the Union Councils in Punjab shall be held in accordance with law.