Akram Khan Durrani Vs Govt of Khyber Pakhtunkhwa through Chief Secretary, Peshawar

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JUDGMENT SHEET

PESHAUIAR HIGH . PESIIAWAR

(JUDICIAL DEPARTMENT}

v JUDG MENT WP No. 3605-P/2019

Akram Khan Durrani and others vs. Govemment of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others.

WP No. 3772-PnUg

Mushtaq Ahmad Khan and another vs. Govt. of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others.

WP No. 1lil-Pfzfig

Himayatullah Mayar vs. Province of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others.

Date of hearing: 01.11.2021 Announced on 02.11.2021 M/s Qazi Jawad Ehsanullah, Ghulam Mohy-ud-Din Malik, Zahid Sultan Khan Minhas & Khushdil Khan, Advocates for the petitioners.

M/s Shumail Ahmad Advocate General & Malik Muitaba Ahmad Advocate along with Khushal Zada Director Election Commission & Riaz Ahmad Khattak Senior Law Officer, for the respondenfs.

SYED ARSHAD ALI. J:- Petitioners in this petition as well as in the connected petitions No. 3772-P & 505 t-P120I9, the majority of whom are the public representatives and elected members of Provincial Assembly of Khyber Pakhtunkhwa, have unanimously challenged the constitutionality and legality of Khyber Pakhtunkhwa Local Government (Amendment) Act No. XXV of 2019 ("Amended Act") alleging therein that the Amended Act is ultra vires to the Constitution and more particularly to Article 140- A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution").

,* Qazi Jawad Ehsanullah, the learned Advocate representing

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the petitioners in Writ Petition No. 3605 -P12019 has argued that the Amended Act is the brain child of the ruling political PartY, which

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has introduced drastic changes in the Khyber pakhtunkhwa Local Government Act, 2013 ("Act of 2013") by compromising on the mandate of Article 140-,4 of the constitution. Through the impugned Amended Act, not only the local governments have been deprived of their political, financial and administrative autonomy but the entire composition of the local govemments envisaged through Act of 2013 has been changed. The main ground of attack of the learned counsel was on the deletion of Chapter-Ill and chapter-IV of the Act of 2013, which has been done through Section I I of the Amended Act. The learned counsel has maintained that the effect of the said deletion is that it has diminished and done away with the entire edifice of the representative and elected system of local governance at a district level. He further argued that if the said deletion is maintained then the district, being the basic administrative unit of the province, will have no government of its own and it will work directly under the provincial Government. Thus, the concept of local self-government at tehsil level will never be achieved for the purpose of Article 140- A of the Constitution. He also argued that the district level government being evolved since 1959 through various enactments has played a pivotal role in development of local self-governance, therefore, the introduction of the local self-govemance only at 44' Tehsil level has literally diminished the utility of local self- governance. Furtherrnore, Section 12 of the Amended Act read with First Schedule has trimmed the number of devolved departments and, thus, for all practical purposes, the new local govefirments are

toothless and cannot effectively meet the mandate provided under Article 140-,4 of the Constitution. Indeed, it has diminished the leffer & spirit of the concept of the local govemment system.

3.The learned counsel has also referred to other provisions of the Amended Act including Sections 55, 57 (ii) & (iii), 60, 64, and 70, whereby it has conferred authority on the Chief Minister of the Province to directly interfere in the local govemment and thus, the political administrative and financial autonomy of the local government would always remain at stake. The learned counsel for the petitioner has also argued that through Section 27 of the Amended Act, the political parties have been deprived to participate in the grassroots political system i.e. local government, which thus, offends Article 17 of the Constitution. The learned counsel placed reliance upon the judgment of Hon'ble Lahore High Court in Awais Younas's case (PLD 2016 Lahore 1) and Pakiston People Partvts case (PLD 2014 Lahore 330).

L Mr. Khushdil Khan, the learned counsel representing the petitioner in Writ Petition No. 5051-P12019, has argued that he is a public representative in the Provincial Assembly and belongs to Opposition bench, however, in the entire process of impugned legislation neither the house was taken into confidence nor the matter was allowed to be elaborately discussed by the house, 2 therefore, the impugned Act was passed in disregard of the 5d- democratic nonns besides being based on mala "fid" and discriminatory. He has also supported the arguments of Qazi Jawad Ehsanullah, Advocate, regarding the deletion of District

Government. IvIr. zahid Sultan Khan Minhas, learned counsel V representing the petitioner has also supported the arguments of learned counsels representing the petitioners in writ petition No.

3605-P t20t9.

5.Mr. Shumail Ahmad Butt, the rearned Advocate General Khyber Pakhtunkhwa, while rebutting the arguments of learned counsels for the petitioners, has argued that the constitution itself has not provided any form or structure of the local govemment and has left it at the wisdom of the provincial Assembly of each Province to form and formulate the structure of the local government, therefore, it is the sole competence of the respective Provincial Assembly to frame a law relating to the local governments. He argued that once it is established that the Assembly was competent to legislate and the impugned legislation does not offend any provision of the Constitution then the same cannot be questioned on the test of reasonability. The learned Advocate General has also referred to the discussion of the parliamentarians in the making/drafting Constitution and argued that it never remained the will of the law makers to provide a structure to the local government in the Constitution, thus, the same has been left at the wisdom of the Provincial Assemblies. Even through Article 140-4. of the Constitution the law makers have 4' deliberately abstained from providing a particular structure or form of the local government. He next argued that the earlier dispensation of the local government, under the erstwhile statute regulating the local government including the Act of 2013, cannot

be a bench mark to strike down the subsequent amendment in the relevant local govemment laws and it is an established law that a Provincial Assembly has no mandate to restrain future legislation.

He has also argued that mere fact that a provision in law is capable of being used discriminately or whimsicaily is no ground to strike a provision of law. In support of this arguments, the learned Advocate General has placed reliance on Messrs sterlins vs. Collector of and

another (1984 CLC 2536), Muhammad Boota vs. The stote (lgg7 PCT.LJ 1974), Messrs Master Sons ys. Mess Ebrahim Enterprises and onother (1999 CLC 403), Avari Limited throuph Controller vs. Deoartment Excise and Government of the Puniab, throunh secreturv and s others (2009 PTD 1868), sved Mehmood Akhtar Naqvi vs. Federation of Pakistan throush Secretarv Law and others (PLD 2012 Supreme Court 1089), Nadeem Ahmed Advocate vs. Federation of Pakistan (2013 SCMR 1062), Waheed Shahzad Butt vs. Federation of Pakistan Director Lesal-II (Aooellate

Authoritv) and another (PLD 2016 Lahore 872), Amiad Hussain Kokhar vs. and Sessions Judse. Tondo Allahvar and 3 others (2016 YLR 1401), Abdul Haq Khon and others vs. Haii Ameerzada and others (PLD 2017 Supreme Court 105), Federal n 54/- Government Emplovees Housing Foundation and others vs.

Malik Ghulam Mustafu and others (PLD 2019 Islamabad 1) and Messrs Getz Pharma @vil Limited throush Authorized Person

vs.

others (2019 PTD 2209).

6.Arguments heard and record perused with the able assistance of the parties.

7.The respective pleadings of the parties and the arguments advanced by the learned counsels representing the parties, the following questions have cropped for adjudication in these petitions:-

I lf/hat is the scope and impact of Articles 32 and 140-A of the Constitution on the power of a Provincial Assembly to legislate on creation and function of local government and whether there are any constitutional limitations/guarantees regardtng the autonomy of local government in respect of its political, administrative and financial responsibilities, if so, its extent?

ii. Whether the Constitution of Pahistan has prescribed any for* or structure of local government and whether the deletion of district government through Amended Act is against the letter of Article 140-A of the Constitution and thus the Amending Act is ultra vires to the Constitution?

iii. Whether once through Act of 2013, the number of departments were devolved to the local government, can it be subsequently revoked by amending the Act of 2013.?

iv. Whether the authority given to Chief Minister of the Province in Sections 64, 67, 70 and 12 j of the Amended Act is contrary to the autonomy of the local government in ar, terms of rts political, administrative and financial matters and thus, the impugned y'' legislation ,s the result of excessive delegation?

v. Whether Section 27 of the Amended Act envisaging for non-party election offends Article 17 of the Constitution?

we are conscious of the regal preposition; while dealing with the case where the vires of an Act has been challenged; the judicial clich6 has been that alegislative enactment could be struck down by the court on two grounds; firstly, where the appropriate legislature did not have the competency to make the law. Secondly, where it (the enactment) abridged any of the fundamental rights enumerated in the Constitution or any other constitutional provisions (Stote of Madhyo pradesh vs. Rakesh Kohli and another" 2013 scMR 34 and "Mcdoweil and co', AIR 1996 sc 1627). our constitution recognizes the concept of trichotomy where the function of Legislature is to legislate, the Executive is to execute and the Judiciary is to interpret the law.

when the constitutional court, which is itself a creature of Constitution, examines the vires of an Act its powers are limited to examining the legislative competence or to such other limitations as are in the Constitution. Therefore, when the Court declares a legislative instrument as void it is not because the judicial power of the Court is superior in degree or dignity to the legislative power of the Legislature but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the constitutional provisions so as to give effect to it or where the legislature fails to keep within the constitutional limits. (*Tariq Transport Co. Vs. Sargodha Bhera Bus Service" PLD 1958 SC 437, "Faujt Foundation and onother vs. Shamimur Rehman" PLD re83 SC 4sn.

8.Now, we move on to discussing the questions that have been formulated earlier issue wise:-

Issue No i.

What is the scope and impact of Articles 32 and 140-A of the Constitution on the power of a Provincial Assembly to legislate on creation and of function local govetnment and whether there are any constitutionil limitations/guurantees regarding the autonomy of local government in respect of its political, administrative and ftnancial responsibilities, if so, its extent?

Local Government were given constitutional recognition for the first time in the Constitution of 1973, which too only to the extent of being a principle of policy of the State. we have before us the relevant portion of constitutional debate provided by the learned Advocate General. The idea of establishing local government was introduced by one of the parliamentarians, namely, Begum Naseem Jehan where she proposed addition of a new Article after Article 3l envisaging for creation of local government. The said debate further shows that Mian Mehmood Ali Kasuri, the then parliamentarian, had proposed before the House that instead of introducing the local govemment in the principles of policy of the state there should a separate chapter dealing with the self local government, however, the said debate/arguments did not prevail before the House and ultimately only it was incorporated through Article 32 of the Constitution being part of the principles of policy.

Similarly, Article 140-A was introduced in the Constitution g{,' through Eighteenth Amendment vide Act,2010, commonly known as "Eighteenth Amendment", which envisages that: - [140A. (l) Each Province shall, by law, estoblish a local government system and devolve political, administrative

and financiol responstbility and authority to the elected representatives of the local governments.

(2)Elections to the local governments shall be hetd by the Election Commission of Pakistan.J

The perusal of aforesaid Article would show that it only provides and mandates the establishment of local government which would have political, administrative and financial autonomy.

The form and structure of local govemment is not the subject- matter of the Constitution and it has been purposely left at the wisdom of each Provincial Assembly being a provincial subject to legislate on the same.

9.Article 137 of the Constitution envisages that the Executive Authority of the Province shall extend to the matter with respect which Provincial Assembly has been empowered under the Constitution to make laws. Political, administrative and financial matters in the province are thus exclusively provincial subject, however, the same have been subjected to limitations as imposed by the Constitution itself. Similarly, Article 140-,4. of the Constitution demands that every province shall, by law establish the local government system and devolve political, administrative and financial responsibility and authority to the elected representative of the local govemments. What should be the limit of that autonomy has not been provided by the Constitution itself. The principle evolved for interpreting the constitution is that the 4' constitution is a living document and should be considered as an organic law of the state and one constitutional provision could not, unless it is specifically provide, override the other constitutional

provision and all the provisions in the constitution must be meaningfully and harmoniously construed together. The Apex Court in the case of "Lqhore Development Afi Imrana Tiwana & others (2015 SCMR 1739)- has laid certain principles relevant to the present controversy in respect of the concept of executive authority of the province emanating from Article 137 of the Constitution viz-a-viz the mandate of Article 140-A of the constitution. we would, thus, seek guidance from the said judgment and for our ovvrr understanding reproduce certain paragraphs from the said judgment: - "35. At the same time if Article 140A is not to be a merely hollow constitutional promise the Provincial Government is obliged to devolve, by law, some political, administrative and financial responsibility on the Local Government. This much is beyond doubt. This Court is not inclined to hold that Article l40A is an exercise infutility and the Provincial Government continues to retain the same wide legislative and executive authority that it did before its insertion. The question is whether to draw the line.

58.This sttll leaves the question as to what is to be the scope of the political, administrative and financial authority to be conferred on the Local Governments. h ,s obvious that the conferment of all such authority on the Local Government would completely efface the Provincial Government within a Province and would violate Articles 137 ond 142 of the Constitution. On the other hand, a complete failure to devolve any such authority would violate Article 2 140A of the Constitution. It is therefore, 4 clear that some meaningful political, administrative and financial authority must be devolved on the Local Governments. The extent of such devolution has to be between nothing and everything. The Constitution makers could have determined the scope of such devolution by enumerating Local Government powers within the

Constitution itself They chose, however, not to do so.

59.The omission by the Constitution makers to specifically enumerate such powers wos deliberate. They lefi the scope of such powers to be determined by each Province in accordance with the prevailing circumstances and political realities of the day. They acl*towledged that the process must be initiated, yet were conscious of the fact that it has to be gradual. As Local Governments, evolve, more and more powers would have to be devolved. Room was left for political experimentation, cons titutional dialo gue and growth. Instead of enumerating Local Government powers the Constitution makers left these to be worlred out in harmony between the Provincial and Local Government. Why? Because they were conscious that political processes are evolutionary in nature. Institutions take root over time. They draw strength from a continuous constitutional dialogue between the people and their elected representatives. Implicit in this was also the recognition that the impositton of a ready-made model .from the top often proves dysfunctional. h retards rother than accelerates political consensus. Much more stable is a model, which develops after mutual give and take over time. The progress of law, the development of political processes and the growth of institutions is ofien like the progress of a mountaineer: two steps forward, one step back. It may appear to be slow but patience is rewarded with stability.

80.it will also not be appropriate to enumerate the minimum or maximum political, administrative and financial powers which must be conferred upon the Local Government to satisfy the mandate of Article 140A of the Constitution. These have to be worked out by the Local and Provincial Governments in o constitutional 4 dialogue over time. The contours will emerge and the content will be identified €/, as the political process continues and democracy takes root. It cannot be done wholesale and here and now. In this the Provincial Government, as the repository of all legislative and executive authority in the Province, must take the initiative. h is, therefore, fo, the Provincial Government to work

constantly and tirelessly to fuffil the mandate of Article I40A and realize its ideas. "

10.Thus, the Provincial Assembly while legislating in relation to the establishment of local goverrment has to keep in consideration the command and mandate of Anicle 140-A of the Constitution in relation to its political, administrative and financial autonomy.

Although, it is the discretion of the Provincial Assembly to devolve any function to which the executive authority of the province extends to the Local Government but once it decides to devolve certain political, administrative and financial responsibility to the local government through an Act of the provincial assembly, it should be devolved meaningfully without undue interference from the Provincial Government or the officer appointed by the Provincial Government in terms of Article 138 of the Constitution.

Therefore, the question whether the Provincial legislature has delegated certain powers in relation to the Local Government to the officers of the Provincial Government is difficult to be answered academically unless the said issue is raised before this Court in reference to a particular matter.

11.The learned counsels for the petitioners while referring to Section 45 of the Amending Act have maintained that earlier by virtue of Section 45 and Section 46 different powers in the n collection of taxes etc, a particular local govemment was enjoying 4 the authority to impose and collect the said taxes, whereas under the current dispensation such powers have now been given to an officer of the department as defined in definition Clause d(II) of Section 2 of the Amending Act. Therefore, theses conferment of

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powers are ultra vires the Constitution. However, the perusal of the afore said section cannot be read in isolation as the powers to impose local taxes has been conferred on the local government through a mechanism as provided in Chapter X of the Act of 20t3, therefore an officer specified in section 45 and 46 ibid while exercising the authority to collect the said taxes for the purpose of local government cannot be termed as illegal. However, this issue cannot be hypothetically decided, unless these powers of the relevant officers are challenged in reference to a particular matter.

12.Moving on to the next issue before us which is:- Issue No ii.

Whether the Constitution of Pakistan has prescribed any form or structure of local government and whether the deletion of district government through Amended Act is against the letter of Article 140- A of the Constitution and thus the Amending Act is ultra vires the Constitution?

As stated in the preceding paras; neither the Local Governments have been explained nor defined in the Constitution nor does it provide the structure and form of the local government.

Local Government is generic term for the lowest tiers of public administration within a particular sovereign state. This particular usage of the word "government" refers specifically to a level of administration that is both geographically-localised and has limited powers. Article 7 of the Constitution recognizes the local Government as the state which reads as under;-

"Article 7. In this part, unless the context otherwise / requires, "the State" means the Federal Government, lfMajlis-e-Shoora (Parliament)J, 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 institution of Local Government vary greatly between countries and even where similar arrangements exist the terminology often varies. For example, there could be a different form of local govemment in a country where it has a unitary form of government as opposed to where there is a federal form of government. For example in Canada, where there is a federal government, the most important form of local government in is the municipal government which is a local council authority. The authority provides local services, facilities, safety and infrastructure for communities. Canada has three orders of government; federal, provincial and local/municipal. According to Section 92(8) of the Constitution Act, 1867 of Canada which envisages that "In each Provtnce the Legislature may exclusively make Lm,vs in relation to Municipal Institutions tn the Province." The form of local government and the constitutional command in Canada is almost similar to one which was envisaged by Article 140-A of the Constitution except that our Constitution ensures political, admirative and financial autonomy to such local government.

Similarly, in the United States of America, the 10th Amendment to the United State Constitution makes the local govemment a matter of the states rather than the federal goverrment, with a special case 4 for territories and the District of Columbia. As a result, the states of the United States of America have adopted a wide variety of system of local government. The categories of the local government in the United States are as following:-

i. Country Govemments.

l1 Township Governments.

iii. Municipal Governments.

iv. Special purpose Local Governments.

13, India is also a federal republic with three spheres of goverrment i.e. central, state and local. However, through 73'd and 74th Constitutional amendments, recognition was given to the local governments and in addition thereto each state has its own local government legislation. Thus, the local governments in India have two distinct forms; urban localities that is covered in 74th amendment to the Constitution whereas the power of rural localities have formalized under the panchayati raj system through the 73'd amendment of the Constitution. Moreover, within the administrated setup of India, the democratically elected local self-governance bodies are called the municipalities in urban area and the panchayati raj institutes in rural areas.

14.The concept of local goverrment in the subcontinent can be traced to Mughal period. The local govemment even had statutory protection in some part of British India. For example, The Conservancy Act No. X of 1842 was promulgated for Bengal as a first formal measure of municipal legislation other than the presidency towns. The said Act provided for constituting the town committees etc. Similarly, the Municipal Act XXVI of 1850, a which, inter alia, provided for constituting the local government committees in British India to make better provisions for public utilities and amenities. Under this Act, the municipal functions included conservancy, road repairs and lighting, the framing of by-

laws and their enforcement by fines. (sajid Mahmood Awan and Nemat*e-uzam, It{ature and Function of Local Government in British, published in Pakistan Annual Research Journal, vol. 50,

15.After partition, the comprehensive scheme of local govemment, which was then commonly known as Basic Democracies, was conceived by the first Martial Law Regime in the year, 1959, which had issued Basic Democracies Order, 1959 ("Order of 1959') w.e.f. 27th October, 1959. Under Order of 1959, the following councils were constitution: -

(1)A Union Council for a number of conttguous villages in rural areas and a Town Committee for each town.

(2)A Thana Council for each Thana (Sub-Distrtct) in East Pakistan and a Tehsil (Sub-Division) Council in West Pakistan.

(3)Distrtct Council for a district excluding urban areas

(4)Municipal Committee for a city.

(5)Divisional Councilfo, o civil division.

(6)Two Provincial Development Advisory Councils for East and West Pakistan respectively.

However, the most important administrative unit of the Basic Democracies was the Union Council covering a group of villages with a total population of ten to fifteen thousand people. A group of a thousand to fifteen hundred people were represented by one /- member, elected on the basis of adult franchise. It is important to note that Section 3(12) of the Order of 1959, the District was defined as to mean revenue district. However, it is important to note

that there was special law for creation of District i.e. West pakistan District (Reconstitution) Ordinanc e, 1960.

The second attempt for introducing and strengthening the local government system was once again introduced during the Martial Law Regime in the year 1979 by promulgating the then NWFP Local Government ordinance, 1979. Section 8 of the said ordinance provided for the composition and structure of various form of local govemment which reads as under:- Section. 8. Constitution of local coancils* (1) The Local Councils to be constttuted under this Ordinance shall be the following, that is to say: ---

(a)A Municipal Corporationfor the City of Peshowar.

(b)A municipal Committee for each City other than the City of Peshawar.

(c)A Town Committee for each Town.

(d)A Union Councilfor each Union; and

(e)A District Council for each District.

(2). As soon as may be, the Local Councils mentioned in sub-section (1) shall be constituted in occordance with the Provisions of this Ordinance.

(i). A Local Council shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Ordinance and rules, to acquire, hold and transfer property, both movable and immovable, and shall by its name sue and be used.

(4)Government may, by notification, specify the name by which any Local Council shall be lcnown and unless the name of a Local Council is so specified, it shall be lcnown as the Local Council of the place where its ffice is situated.

16.The third attempt for revamping the local government was yet again introduced during Martial Law Regime in the year 2001, r' by promulgating the Local Government Ordinance of 200t The said Ordinance describes the local govemment in Section 2(xvi) which includes:-

A District Government or a City District Government and Zilla Council;

ii. A Tehsil Municipal Admintstration and Tehsil Council;

iii. A Town Municipal Administration and Town Council; and iv. A Union Council and union of administration.

17.It was in the year 2013 that for the first time a political govemment in this Province had enacted the law relating to local government i.e. the Khyber Pakhtunkhwa Local Government Act, 2013 ("Act of 2013"). Act of 2013 also almost deals with the same composition of the local government but with slight changes.

18.Thus, the history of the Local Government in Pakistan would show that these institutions were introduced when the political govemment were not in powers, therefore, it can be clearly seen that the institution of local govemment in Pakistan is still in embryonic stage and would gradually evolve over a period of time obviously after political debates between the various stakeholders.

The establishment of local govemment at a district or tehsil level is the exclusive competence of the Provincial legislature. As stated above, the form of local govemment is not the subject matter of the Constitution Therefore, neither we have the jurisdiction to advise for a particular legislation nor it would be appropriate for this Court to issue a writ to the law makers for a particular form of local government. The establishment of local govemment at'distriCt'levet r) 4 may sound good and seem appropriate today but it may not be a good form of a government in future if some other form of the govemment is evolved over the said period.

19.Indeed, it is by now trite law that Court of law is not entitled to read words in the constitution or an Act of Parliament unless clear reason was found with in the four corners of either of them.

,, ( PLD

2017 SC 105) and Nadeem Ahmad, Advocate Vs. Federation of Pakistan (2013 SCMR 1062)'.

20.The main emphasis of the learned counsels for the petitioners was that the Local Government at the district level being the basic administrative unit was essential as we can find the said form of govemment in previous laws i.e. Order of 1959, NWFP Local Government Ordinance, 1979 and Act of 20t3. However, we are afraid that the earlier statutory dispensation cannot be a benchmark for striking down the amending act in order to restore the same. As stated above, the law is very clear that in order to strike down a statute the statutory provision(s) in the impugned law is either beyond the competence of legislation or it is contrary to some provision of the Constitution. When the constitutional makers have left this power to the Provincial Legislature then in such a circumstance this Court will have no jurisdiction to prescribe or advice any form of government to provincial legislation as it would amount to adding in Constitution what has not been provided in the Constitution by the law makers. Even otherwise undertaking such /, an exercising would obviously be an oveffeach in the function of legislature which would be indeed against the very concept of trichotomy envisaged by the Constitution'

21.The next issue before this Court is as under:- Issue No iii.

Once through Act of 2013, the number of departments were devolved to the local government, it cannot be subsequently revoked by amending the Act of 201i.

It is the contention of learned counsel for the petitioners that twenty-four number of departments were initially devolved through Section 22 of the Act of 2013, hence, these departments could not be revoked through Section 12 of the Amending Act which, they argued has shrunk the number of the devolved departments. This argument of the learned counsels for the petitioners has not impressed us. If we are to trace down the history of the devolution of various departments in terms of Section 22 of the Act of 20t3, originally in the first schedule to the Act of 2013, twenty-four number of departments were devolved out of which eight departments were revoked through the Khyber Pakhtunkhwa Local Government 4th Amendment Act, 2015 whereas two departments were revoked through Act No. XV of 2017. However, this issue has been elaborately settled by the Apex Court \n Imrana Tiwana's case. For ready reference we would like to reproduce the relevant paragraphs from the said judgment: -

"39. That these functions cannot be "stripped" (paragraph 78) and that the Provincial Government cannot "takp any step that reverses or rolls back"

(paragraph 89) these functions. That any intrrftrrrnte in this, "Political, administrative and financial space of the Local Government SYstem, would be undemocratic" and once the devolution has taken place, "any interference or dilution of this power by the Provincial Government or anY other authoritY, without there being any change in the

legislative design, which drows its power under Article 140A" would be impermissible. That these basic core functions read with Article l40A of the Constitution provide the "basic architecture" (paragraph 76) and "basic structure" (paragraph 89) of the Local Government System, which cannot be stripped, reversed or rolled back

40.This effectively means that once a Provincial Government has enacted a statute devolving certain basic functions on the Local government it loses its powers to amend the Provincial low. These provisions become unamendable. These functions cannot be abridged or curtailed. They can only be expande d. The constitutionally conferued legislative authority of the Provincial Assembly to amend the law, with regard to Local Government, can onlY be exercised to enhance and not to curtail thefunctions of the Local Government.

41.This rs an interPretation which we cannot endorse in spite of the fact that we accePt that the Local Government must have meaningful powers under the PLGA 2013. We also .fird it dfficult to accePt the interpretation that once such powers or functions are conferred by a provincial law, the Provincial Assembly is denuded of the power to amend this low except in a particular manner. It is impermissible to so curtail or limit the legislative authority of the Province in Local Government matters. Constitutions must be interpreted with an eye to the future. These are the living documents' The future may throw uP issues which require legislative intervention. The functions and responsibilities of the Local and Provincial governments may require further articulation. This Court cannot today rule that irrespective of the circumstances, which may compel such modification or the political realities of the day that may require a re-think, the Province would have no legislative authority in the matter.

e 42. It is well settled that the legislature of today cannot enact a ,law oi pott a resolution, which binds a successor legislature. Such a commitment made either through a resolution or legislation, whereby the to amen-d a -law of afuture legislaturenot bind a powers are abridged will

successor Legislature or even the same Legislature. This ,s block letter constitutional law. If any authority is required for this it can be found in Re: Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan by President Zulfilrar Ali Bhutto; PLD 1973 SC 563 at

576 J:

The form ofthe resolution proposed to be placed before the House, itself contemplates that legal and constitutional measures moy be necessary to give effect to the object sought to be achieved. It is for this reason that a "firm assurance" is being sought from the assembly. No violation for any provision of the Constitution is, therefore, even contemplated. Such on ossurance too will be nothing more than a pious wish, for legally it would not bind any future Parliament or present Parliament, for when the legislative measure or constitutional amendment is brought before a House, the House will be free to consider it uninhibited by any assurance it may have given earlier. No legislature can legally abrogate rts sovereign right to legislate as and when a legislative measure is brought before it in the light of its own provisions. The Legislature cannot be bound by anY previous promise or assurance to legislate in a particular manner. Such a promise or assurance will neither be legally binding nor enforceoble. (Emphasis Supplied).

43.Such an interPretation would lead to dfficulties in working of a republican government. It maY gwe undemocratic results. A political party in majority in a Provincial Assembly as well as the Local Bodies whenfacedwith imminent defeat in a forthcoming political election may devolve all political, administrative and financial responsibility and authority to the Local Government. Another political party, which wins the Provincial elections and / forms the Provincial Government would be foced with a situation where all its powers have been devolved on the Local Government. It would be lefi with no political, administrative or financial functions or responsibilities. Its role would have been reduced to that of a mere facilitator of the Local Government. Yet, it would be unable to amend the Local Government legislation, reducing the powers of the

Local Government and conferuing some authority on itself,, The defeated political party and the outgoing government v would, thus, ltave denied it the fruits of its success in the provincial elections. It would have no authority be it political, administrative or financial to run the affairs on the Provincial plane- The interpretation of the High court that once the core functions have been devolved on the Local Government these cannot be "rolled back" (in other words amended), cannot, therefore, be sustained.

45.Such an amendment in the functions or responsibilities con take place by amending the PLGA 2013. This can also be done bY enacting or amending other lans which have the ffict of trimming the PLGA 2013. To state that while the Provincial Legislature may take the former route it cannot take the latter is to restrict the legislature in the mode and manner of the exercise of its legislative powers. This would result in defeating the substance. In the absence of a constitutional command to the contrary, a Court cannot read such limitations into the exercise of legislative authority."

Another question which requires adjudication is:- Issue No iv.

whether the aathority given to chief Ministet of the Province in sections 64/67/70 ana lzs of the Amended Act is contrary to the autonomyofthelocalgovernmentintermsofitspolitical administrative and Jinaniial matters and thus, the impugned legislation is the result of excessive delegation?

In this regard the learned counsel for the petitioners have taken us through various provisions of the Amending Act viz-a-viz

the Act of 2013. By referring to amendment in Section 60, the

4 learned counsels have maintained that through the impugned Amending Act no safeguard and security to the orders of the local

been government or the chairman of a particular local council has provided which offends the basic idea of political and

administrative independence of the local government. In reference to amendment in Section 61 of the Act of 2013 the leamed counsels have maintained that in Act of 2013 the said section had provided for internal control, inspection and supervision whereas under the current dispensation the chairman of a particular local government has been required to take appropriate actions as directed by the Minister Local Government. Similarly, while referring to amendments in Section 64, 67 and Section 123, the learned counsels have maintained that under Act of 20L3 the powers to suspend any resolution of the Local Government vested in the Provincial Government whereas the said powers through the Amended Act were given to the Chief Minister and certain powers relating to the appointment of the relevant officers were also given to the Provincial Government.

22.As discussed earlier the mandate of Article 140-A of the Constitution is that each province shall by law establish a local govemment system and devolve political, administrative and financial responsibility and authority to the local representative of

the local govemment. Thus, the essential function of creation and

establishment of the local govemment lies with the provincial

legislature i.e. the Provincial Assembly whereas the executive authority of the Province is being exercised by the Provincial r' Government which means the chief Minister and his Similarly, it is not the requirement of Article 140-A cabinet'

of the of local Constitution that while legislating about the establishment government and devolution of certain executive function of the

govemment to the Local Government, the Province should be deprived of exercising its executive authority over the loca1 govemment in overseeing and supervising the functions of the local government in accordance with law. However, devolution of political, administrative and financial responsibility to the local govefirment should be meaningful and effective. Thus, clothing any authority other than the Provincial Government outside the regime of the local govemment would obviously not only be excessive delegation but contrary to the mandate of article 140-A and 137 of the Constitution. In this regard, we may seek guidance from the judgment of the Apex Court in Imrana Tiwana's case and would refer the following paragraphs for our guidance: - "54. The Province is under an obligation under Article l40A of the Constitution to establish, by lmt, a Local Government System and to devolve political, administrative and financial responsibility on the Local Government. Yet, in doing so it is not stripped bare of its executive and legislative authority under Articles 137 and 142 of the Constitution. The Provincial and the Local Governments are to act in a manner, which complements one another.

The constitution, therefore, envisages a process of parttcipatory democracy, where the two governments act in harmony with one another to develop the Province' The authority of neither destroys the other.

Article l40A cannot be used to make the provisions of Articles 137 and 142 either subordinate to it or otiose. One constitutional provision cannot, unless it is a so specifically provided, override another and must be harmoniously construed

4 together, as repeatedly held by this Court: - I. Hakim Khan v. Government of Pakistan; PLD 1992 SC 595 at 616

D;

il. Kaneez Fatima v. Wali Muhammad;

PLD 1993 SC 901 A at 910 A,912 E and 914 G;

ill. Zaheeruddin v. The State; 1993 SCMR l7l8 at 1743 E, F and G;

U. Al-Jehod Trust v. Federation of Pakistan; PLD 1996 SC 324 at 5j,5

LLLL;

V

V. Pakistan Lawyers Forum v.

Federation of Pakistan; PLD 2005 SC 719 at 763 N and P;

W. Raja Muhammad Afzal v.

Government of Pakistan; PLD 1998 SC 92 at 97A;

55.The creation of a Local Government System, and the conferment upon the Local Government of certain political, administrative and financial responsibilities does not deprive the Province of authority over its citizens and deny it all role in the progress, prosperity and development of the Province. The creation of a Local Government System does not spell the end of the Provincial Government in the Province. To the contrary it strengthens the Provincial Government by entrenching democracy at grass root level.

56.That even after the insertion of Article 140A the Provincial Government would continue to have the authority to enact and amend statutes, make general or special lm,vs with regard to Local Government and local authorities, enlarge or diminish the authortty of Local Government and extend or curtail municipal boundaries. This power of amendment has, however, to be informed by the fact that if the Provtncial Government oversteps its legislative or executive authority to make the Local Government powerless such exercise would fall foul of Article l40A of the Constitution. An excessive or abusive exercise of such authority would not be countenanced by this Court. It would be struck down."

23.We would like to refer to certain provisions of the Amending Act where the Chief Minister has been given the authority to interfere in the affairs of local government: - "57. Relations of Government with [Local GovernmentJ. 0 [local governmentJ shall carry out its functions in / accordance with provisions of this Act and the rules made there under.

(2)Government maY Provide guidelines and render advice for achieving the ends of the Government policy and for promoting economic, social and environmental security of the province

through District Administration who shall act in the following manner:

(a)coordinate between Government departments and local governments;

(b)coordinate among local governments in cases where more than one local government in a district are involved;

(c)coordinate/carryout periodic inspections to ensure that the non- devolved offices perform their functions fficiently and ffictively;

(d)dispute resolution among Tehsil Local Governments within the districts;

(e)where required to do so by the Government or a Government department, report on the performance of the devolved ffices in the district;

(fl where required to do so by the Government, or a Government department, report and review of budget expenditure and Annual Development Program utilization; and

(g)any other task assigned bY the Government for improved service delivery.J

(3)The Chief Minister, may issue directives in public interest to a Chairman for implementation and if he fails to comply with the directions, the Chief Minister may require the Department or a Commissioner to take such action as the situation may necessitate.J

59.Suspension and removal of a [Chairman], --(l) Where, in the opinion of the Chief Minister, a [ChairmanJ is deliberately avoiding or abstaining wilfully or failing to comply with directions given under this Act, the Chief Minister may, for reasons to be recorded and conveyed in writing, suspend him for a period not exceeding thirty days and refer the matter to the Local Government Commission for enquiry.

(2)During the course of enquiry, the Local Government Commission shall provide an opportunity of personal hearing / to the suspended [ChairmanJ and shall submit its report along with its recommendations which may include removal of the fChairmanJ to the Chief Minister for appropriate action in light of such recommendations.

(3)During the period of suspension of the [the member nominated under paragraph (q) of sub-section (l) of section 23A and sub-section (4) of section 27J shall act as [ChairmanJ and tn case no decision is taken within thirty days from the date of suspension of the [ChairmanJ, he shall stand re-instated to his ffice.

60.Setting aside an order of Chairman. ---Where, in the opinion of the Chief Minister, an order or decision of a Chairman is not in conformity with low or is against the interest of the people, he may, for reasons to be recorded and conveyed to the Chairman, suspend such order or, as the case may be, decision, refer the matter to the Local Government Commission for enquiry to be completed within sixty days and moy on receipt of the report, quash the order or decision of the Chairman, if it is so recommended by the Local Government Commission.J

61.Internal controls, inspection and supervision. -- (l) Chairman, Tehstl Local Government may designate inspecting fficers to objectively examine the performance of any offire in local government in relation to service delivery.

(2)Inspection reports prepared and containing evaluation of performance in relation to achievement of targets, responsiveness to citizens' dfficulties, fficiency in delivery of services, transparency in functioning and corrective actions taken by Chairman, Tehsil Local Government, shall be laid before tehsil council.

(3)If the tehsil council resolves that the situation requires any odditional action, it may refer the case to the respective Standing Committee.

(4)In all other cases Minister Local Government may require the 0 Chairman to take on appropriate action.l

64.Suspension of Resolution and proceedings. ---Where in the opinion of the r' 2 Chief Minister a resolution of a local council is not in conformity with law or is not in the interest of public, he for reason to be recorded may suspend the execution of such resolution and prohibit the doing of anything resolved to be done.J "

The careful perusal of the aforesaid sections would show that the wonhy Chief Minister has been given the authority to supervise the essential affairs of the local government which includes issuance of directions to the Chairman local council (Section 57(3)), suspension and removal of the Chairman (Section 59), setting aside the order of the Chairman (Section 60), interference by the Minister Local Government in the affairs of Local Government (Section 61(a)) and suspension of resolution and proceedings by the Chief Minister of a local council (Section 64).

24,' Though, as stated by the Apex Court in para 55 of fmrana Tiwana's case the creation of local government system and the functions upon the local government of certain political, administrative and financial responsibility does not deprive the Provincial Govemment of its authority over its citizen and deny its role in the progress, prosperity and development of the Province.

However, the concept of Government as enunciated by the Apex Court in'oMessrs Mustufa Impex, & others Vs. The Government of Pakistan (PLD 2016 SC 808)" in normal connotation is equivalent to the term executive and the executive authority of the Province being exercisable in the name of the a Governor by the Provincial Government, consisting of the Chief Minister and Provincial Minister which shall act through the Cabinet Minister(s), therefore, through the aforesaid provisions i.e.

(Sections 57(3), 59, 60,61(4) and 64 of the Amending Act) conferring these powers of the Provincial Government to the Chief Minister are thus a delegation which is contrary to Article 129 of the Constitution. In

this regard we may refer to para Nos. 68 and 84 of the judgment of v the Apex Court in 'Mustafa Impex" case supra for guidance, which reads as under: -

"68. We may now refer to the provisions of the Pakistan Telecommunication (Re- Organization Act), 1996 to which reference was made by the learned Additional Attorney General to buttress his submissions. While it is perfectly true, as stated by him, that the said Act does contain o definition of the Federal Government as being the Ministry of Information Technologt and Telecommunication we have no doubt about the fact that a statutory definition must yield before the provisions of the Constitution of Pakistan. These provisions, as discussed above, leave no doubt in the matter as what the term Federal Government means. It means the Prime Minister and the Ministers. Hence, this statutory delinition is clearly violation of Article 90 of the Constitution and, therefore, is ultra vires.

84.We may now summarize our conclusions: - i. The Rules of Business, l97i are binding on the Government and a failure to follow them would lead to an order lacking any legal validity. ii. The Federal Government is the collective entity described as the Cabinet constituting the Prime Minister and Federal Ministers. iii. Neither a Secretary, nor a Minister and nor the Prime Minister are the Federal Government and the exerctse, or purported exercise, ofa statutory power exercisable by the Federal Government bY anY of them, especially, in relation to fiscal matters, is constitutionally invalid and a nullity in the eyes of the law. Similarly budgetary expenditure, or discretionary governmental { expenditure can only be outhorized by the Federal Government i.e. the Cabinet, and not the Prime Minister on his own.

iv. Any Act, or statutory instrument (e.5. the Telecommunication (Re- Organization) Act, 1996) purporting to describe any entity or organization other than the Cabinet as the Federal Government is ultra vires and a nullity.

v. The ordinance making power can only be exercised after a prior consideration by the Cabinet. An ordinance issued without the prior approval of the Cabinet is not valid. Similarly no bill can be moved in Parliament on behalf of the Federal Government without having been approved in advance by the Cabinet. The Cabinet has to be given a reasonable opportunity to consider, deliberate on and take decisions in relation to all proposed legislation, including the Finance Bill or Ordinance or Act. Actions by the Prime Minister on his own, in this regard, are not valid and are declared ultra vires.

vi. Rule 16(2) which apparently enables the Prime Minister to bypass the Cabinet is ultra vires and is so declared.

vii. Fiscal notiJications enhanctng the levy of tax issued by the Seuetary, Revenue Division, or the Minister, are ultra vires. (it is clarified, in passing, that this court has in the past consistently held that a greater latitude is allowed in relation to beneficial notifications and that principle still applies).

viii. In consequences of the above findings the impugned notifications are declared ultra vires and qre stuck down.

Prior to concluding this judgment we would like to express our appreciation for the valuablet assistance provided by the learned counsel who have appeared in this matter. We are grateful to each one of them."

25, We have also considered to save the afore said provisions on the touchstone of the theory of reading down. The object of reading down is primarily to save the statute and in doing so the paramount n { question would be whether in the event of reading down, the statute can remain functional? Secondly, would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before the Court?

Secretarv and others Vs. M. throush Deoutv Convener and v others IPLD 2014,SC sJI)]. However, the theory of reading down has been elaborately explained by the Indina Supreme Court in the case of Delhi Transoort Corpltration (AIR 1991 SC 101). tn the said judgment, the other Members of the Bench did not agree with the Chief Justice of Supreme Court and the majority opinion in paragraph 274 of the judgment has elaborately dealt with this matter in the following manner.

"I am, therefore, inclined to hold that the Courts though have no power to amend the law by process of interpretation but do have power to mend it so as to be in conformity with the intendment of the legislature. Doctrine of reading down is one of the principles of interpretation of statute in that process. But when the offending language used by the legislature is clear, precise and unambiguous, violating the relevant provisions in the Constitution, resort cannot be had to the doctrine of reading down to blow life into the void lqw to save it from unconstitutionality or to confer jurisdiction on the legislature. Similarly it cannot be taken aid of to emasculate the precise, explicit, clear and unambiguous language to confer arbitrary, unbridled and uncanalised power on an employer which is a negation to just, fair and reasonable procedure envisaged under Articles 14 and 2l of the constitution and to direct the authorities to record reasons, unlmown or unintended procedure, in the monner argued by the learned counsel for the appellants".

26.In view of the above, although the Provincial Government has the jurisdiction to supervise and oversee in the affairs of local government in order to ensure that the local government should comply the law, however, in view of the clear mandate of Anicle 129 of the Constitution and the law laid down in Mustafa Impex tl

4 caffi, these powers cannot be conferred to the Chief Minister of the province. Resultantly sections 57 (3), 59, 60, 6L(4),64 allowing the Chief MinisterAvlinister Local Government to interfere in the affairs of the local government is thus ultra vires the constitution.

27.Moving on further to the last issue before us which is as under:-

Issue No V.

Whether Section 27 of the Amended Act envisaging for non-party election offends Article 17 of the Constitution?

The issue under discussion is in respect of the election of the village council and neighbourhood council on non-party basis. The composition of the Tehsil Council has been provided in Section 24 read with Part-I of the Eleventh Schedule of the Act of 2013 according to which the Tehsil Council inter-alia is comprised of all the Chairman of village and neighbourhood councils in the Tehsil.

Similarly, Section 27 deals with the composition of village council and neighbour council. For ease reference Section2T is reproduced as under: -

u27. Composition of Village Council and Neighbourhood Council --(1) Every village council and neighbourhood council, shall comprise of members as provided in Part-II of Eleventh Schedule to this Act.

(2)The village council or the neighbourhood council, as the case may be, shall be a multimember ward for directly election of members to be held on non- oartv basis throueh adult franchise and ioint electorate.

(i)The candidate securing highest number of votes in election to the general seats of the Village Council or the Neighbourhood Council, as the case be, shall be the Chairman of the respective council:

Provided thqt if the required number of general members of village council or neighboured council have been elected unopposed, the election of Chairman of village council or

neighboured counctl shall be conducted in the prescribed manner.

(4)Executive Authority of the Village Council or Neighbourhood Council, as the case may be, shall vest in respective Chatrman who may nominate one of the members of the Village Counctl or the Neighbourhood Council, as the case may be, to preside over meetings of the respective council and deputize him during his temporary absence.

Explanation. --- For the purposes of this section and Eleventh Schedule, the term "youth" means a duly quali/ied candidate for election under this Act, who is below thirty years of age on the last day fixed for filing of nomination papers.J"

28.The Chairman of the respective village council and neighbourhood council are the members of the Tehsil Council where the said village council or neighbourhood council exists.

Section 27(2) envisages that the election to the village council and the neighbourhood council shall be held on non-party basis meaning thereby that the village council would comprise of the members who have been elected on non-party basis. Thus, Section 27(2) imposes direct restriction on the political parties to contest and nominate its candidates for election not only for the memberslChairman/councillors of the respective village council and neighbourhood council but could also put a bar on political parties to participate in the affairs of Tehsil Council constituted under Section 24 of the Act of 2013 (Amended through Act of 20Le).

4 29. In our constitutional history prior to the Constitution of Islamic Republic of Pakistan, 1973 various laws were made to curtail and diminish the role of political parties in Pakistan. With the declaration of Martial Law in 1958, a law was promulgated for

disqualification of the politicians namely Elective Bodies v (Disqualification) order, 1959. The said law defined misconduct of a politician as meaning any subversive activity, preaching of any doctrine or committing any act which contributed to political instability, bribery, comrption, or if he had a general or persistent wilful misapplication or diversion of public money and any other abuse of power or position. (5).

A scheme for local self-govemment was introduced through a law known as Basic Democracies Orde\ 1959. On 17 February, 1960 a Constitution Commission was appointed under the Chairmanship of former Chief Justice of Pakistan, Justice Shahbuddin to examine the causes of parliamentary democracy.

The commission while examining the issue of electoral politics referred to the role of the political parties in the process of discovering, shifting, testing, and choosing candidates and concluded that, "If we want to have a democratic form of government our endeavour should be to create conditions in which a party based on principle can emerge". The Commission quoted with approval the remarks of Lord Bryce that political parties are far older than democracies; that 'no one has yet shown how democratic government could get on without parties'. (Khan Hamid, 'Constitutionol and Political History of Pakistan', Oxford 4- University Press, Second Edition, P.L24).

30.However, our final Constitution i.e. Constitution of 1973 has ensured that every citizen not in the service of Pakistan has the right to form or be a member of political party, subject to any

reasonable restriction imposed by law in the interest of sovereignty or integrity of Pakistan. What could be the reasonableness of the restriction has been aptly discussed by Mr. A.K Brohi in his famous book (Fundamental Law of Pakistan) and has formulated the following principles of the law of association: - " Frist: The rights of individuals to associate must be protectedfrom unlawful governmental infringement,

Second: Government may promote the opportunities of individuals to associate by appropriate means, and may grant appropriate privileges and powers to associations when the public interest will be fostered by doing so,

Third: Government may when the public interest requires it forbid private persons to interfere with the rights of individuals to associate and may even require private persons to enter into legal relations with associations,

Fourth: An association must not without adequate reason infringe upon the rights of other persons; and government must define the interests entitled to legal protection of these other individual and groups, whether they are members or non-members of the association,

Firth: Government may prevent the use of the rights of association to do serious injury to society as a whole or to the organized political institution of the society. (12)"

31.Similarly, the Apex Court in the case of "@ & others Vs. Government of Puniab & others (PLD 2005 SC i 193)" has laid down the following standards of ascertainment of 4 reasonable restrictions: -

t. The limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public. Ws Dwarla Prasad v. State of U.P. (AIR 1954 SC 224), P.P. Enterprises v. Union of India (AIR 1982 SC 1016).

ii. The Court would see both to the nature of the restriction and procedure prescribed by the statute for enforcing the restriction on the individual freedom. Not only substantive but procedural provisions of statute also enter into the verdict of its reasonableness Kishan Chand v.

Commtssioner of Police (AIR 1961 SC 70s).

nt- The principles of natural justice are on element in considering reasonableness of a restriction but the elaborate rules of natural justice may be excluded expressly or by necessary implication where procedural provisions are made in the statute. Haradhan Saha v. State of W.B. [(re7s) 3 scc 1e8J.

lv. Absence of provision for review makes the provisions unreasonable. KT. Moopil Nair v. State of Kerala (AIR 1961 I SC 552).

v Retrospectivity of a law moy also be the relevant factor of law, although ct retrospectivity of law does not make it automatically unreas onable. Narottamdas v. State of Maddhya Pradesh and others

(AIR 1964 SC 1667).

vt. Reasonable restriction also includes cqses of total prohibition of a particular trade or business which deprive o person of his fundamental right under certain circumstances. Narindra Kumar Vs. Union of India (AIR 1960 SC 430).

32.Therefore, ffiy restriction on the political party through any legislative instrument or executive order can be subject to judicial review by the Constitutional Courts on the touchstone of Article 17 of the Constitution.

33.In the case of "Muhammad Nawaz sharif Vs. Federation of 4 Pakistan (PLD 1993 SC 473)" the Apex Court while dilating upon the right of political parties to participate in election being the fundamental rights of citizens of Pakistan has held:- "Indeed, even earlier this Court had observed in Maudoodi's cqse PLD 1964 SC 673 that 'forming of associations necessarily implies caruying on the activities of an association for the mere forming of

association would be of no avail' (see page 764 of the Report". It was also observed in the some case that 'the ordinary conception of a political party v includes a right within the frame work of the Constitution to exert itself through its following and Organization, and using all available channels of moss communication, to propagate its view in relation to the whole complex of the admintstrative machine, including the Legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies as well as in the legislative filed, even to the extent of proposing and pressing for amendment of the Constitution itself' (see page 692 of the Report)."

Actually, the objection being raised by the learned counsel for the respondents before us here stands practically answered already in Miss Benazir Bhutto Vers Federation Of Pakistan and another (PLD 1988 SC 416\. It was herein, inter alia, also observed: -

"Reading Article l7(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as political partlt ... ...Again, the forming of a political party necessarily implies the right of carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words, the functioning is implicit in the .formation of the par1v" (see page 511 of the Report).

In a subsequent passage (at page 541) this aspect was commented upon as follows: -

"It (Article l7(2)) provides as basic guqrantee to the citizen against usurpation of his will to freely participate in the affairs and governance of Pakistan through polittcal activity relating thereto. " (Emphasis supplied).

((to Thus, in the scheme of our Constitution, the guatarfiee for* a political party" must be deemed to comprise also the right by that political party to form the Government, wherever the said political party possesses the requisite majority in the Assembly. As

was explained by Chief Justice Muhammad Haleem in the same judgment: -

"Our Constitution is of the pattern of parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority... ...it is a party system that converts the results of o Parliamentary election into a Goyernment."

Accordingly, the basic right "to form or be a member of a political party" conferred by Article l7(2) comprises the right of that political party not only to form a political party, contest elections under its banner but also, after successfully contesting the elections, the right to form the Government if its members, elected to that body, are in possession of the requisite majority. The Government of the political party so formed must implement the programme of the political party which the electorate has mandated it to carry into effect. Any unlawful order which results in frustrating this activity, by removing it from office before the completion of its normal tenure would, therefore, constitute an infringement of this Fundamental Right."

34.When a similar provision was made in Section 18 of the Punjab Local Government Act (Act No.XVIII of 2013) envisaging that the election of members of Local Government to be held on non-party basis, the same was challenged before the Hon'ble ? Lahore High Court in the case of "Pakistan Peoples P Government of Puniub & others (PLD 2014 Lahore 330)." After threadbare discussion on the issue, it was ultimately held in the said judgment that: -

"39. In so far as the incumbents in the ffice of Chairman and MaYor of local

government are concerned, prima-facie such persons do foll within the definition of service of Pakistan. However, the denial of the right under Article 17(2) of the Constitution to such ffice bearers of local government is ottracted afier they get elected to the said ffices. The dtsqualification under Article l7(2) of the Constitution applies to holders of such offices and not to candidates who are contesting the same. At the present stage of elections, the bar under Article I7(2) of the Constitution does not operate upon candidates sponsored by political parties. The successful candidates may exercise an option available to the holder of a post falling in the service of Pakistan by disassociating themselves for partisan political activity. The Hon'ble Supreme Court in " Asehar Khan v, General (Retd.l Mirza Aslam Baie (PLD 2013 SC 01)" observed that the elected ffice of the President of Pakistan must be discharged with complete neutrality ond imparttality. However, in saying so, the Hon'ble Supreme Court has not disqualiJied a person with a political background fiom contesting for the office of President. After election, a chairman or mayor of local government shall have an option to disassociate from his previous political association and thereby to exercise his functions with neutrality. Be that as it may, in so far as elections to local government are concerned, no person who is a candidate of political party can be excluded from contesting election to all ffices in local governments. The fact whether an elected ffice bearer of local government is disquali/ied to contest for re- election, is a matter for statutory provtsion which issue does not concern the resolution of the controversy before the Court."

Afterwards the Provincial Assembly of Punjab duly enacted and passed Punjab Local Government (Amendment) Act,2015 (Act 4 XXX\4 of 2015) dated 12.10.2015 whereby the said Section 18 was duly substituted and local govemment election was to be conducted by the Election Commission on party basis by allotting symbols to candidates of political parties in the prescribed manner

35.Moreover, section 14 of the cantonment Local Government (Elections) ordinance, 2002 which also envisaged for non-party election in the cantonment board was challenged before the Hon'ble Lahore High Court in the case of "M Federation o' Pakistan & others (PLD 2016 Lahore 1)." The Hon'ble Court after referring the various case law and other instruments have declared Section 14 of the Act to the extent of it envisaging for non-party base is ultra vires to the Constitution. We would refer the relevant paragraphs of the said judgment for our guidance: -

" 18. According to Social Development Papers: l6 Even in political systems that explicitly prohibit parties from contesting seats in local elections, national and regional parties often unfficially back candidates in local elections, even if this support is not denoted on the actual ballot. This is certainly the cose in Indta, where party fficials at the state level proffer statistics about the number of local governments controlled by the party and village political leaders will admit to being aligned with a certain party, even though local elections operate on a non-partisan basis by law (Packel 2007). Ghana also witnesses this practice, where parties unfficially sponsor individual candidates (Ayee 2004). Thus, permitting parties to compete in local elections allows the inescapable link between local government and higher levels of government to exist openllt. allowing for greater transparency. Where a strong national partv sltstem exists, parties nave signt/icant inc the local level in order to improve their electoral chances at higher levels (Blair 2000).

i Thus preventing parties from participating in local elections, permits decentralized governance to retain the negative qualities of partisan politics, without gaining the benefits. These benefits include the scrutiny and public accountability that comes from an fficially acl*towledged party opposition on local councils, an opposition that has clear incentives to be vigilant and uncover instances of wrongdoing (Crook 1999; Blair 2000). Additionally, non- partisan candidates are often elected based on

their individual popularity, rather than the strength of their ideas (Ayee 2004). Recognizing lh, presence of parties at the village or 'municipality level thus may allow more transparent representation of tnterest. Furthermore, political competition built around personalism may be just as likely, if not more lilrely to leod to relationships of clientelism and patronage than political competition built around partisanship (Garcia-Guadilla 200 2).

19.Local government politics through political parties provide nurseries for the national politics. l7 It educates the common people, realize and fortify the sense of participation and social cohesion.lS The elected representatives are accountable and answerable to their electorates at the local level.19 It enhances healthy competition between political; parties and align their national, regional and local policies, hence federation is strengthened.20 The performance of a party at local goverwnent level also enhances its national stature. 2 l

25.Our jurisprudence has recognized these penumbras around the fundamental rights. "Article l7(2) has been held to guarantee not only the right to form or be a member of a political party but also to operote as a political party. The forming of a political party, it has been held, necessarily implies that right of carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words, functioning is implicit in the formation of a political party. Arttcle l7(2), it has been held further, provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governance of Pakistan through political activity relating thereto. Right to form or to be member of a political party, it has been held to comprise the right to participate in and contest an election".22 In Muhammad Nawaz Sharif case 23 the august Supreme Court held that "the basic right to form or be a member of a political party conferred by Article I7(2) "comprises the right of that political party not only to form the political party, contest elections under its banner but also, after successfully contesting the elections, the right to form the government if its members, elected to that body, are in possession of the requisite majority. The Government of the political party so formed must implement the 4 programme of the political party which the electorate has mandated it to carry into fficL Any unlawful order which results in frustrating this activity, by removing it from ffice before the completion of its normal tenure would, therefore, constitute an infringement of this fundamental right."24. In Workers Part.v Pakistan case.25. the august Supreme Court has held that "the freedom of association, as enunciated by Article 17 of the

Constitution, confers afundamental right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and advonce this right through a democratic system. The "freedom of assembly" (Article 16) and freedom of speech (Article 19) also serve to realize this constitutional imperative." Article 17(2) underscores the integrality and importance of a functional political party to democracy. "

36.Learned Advocate General has also placed before us the judgment of this court passed in 'w.P No. I 00-P /2014' wherein this Court had refused to strike down a similar provision in the Un- Amended Act of 2013. This judgment is distinguishable, however, in view of the clear mandate of the Article 17 of the Constitution with profound respect the reasons given in the said judgment does not enunciate a good law. In our understanding the effect of Section 27(2) envisaging for non-party election for the member of the village council/neighbourhood council who would ultimately become member of the Tehsil Council is an unreasonable restriction on the political parties to participate in the election at the local level and would thus offend Anicle I7(2) of the Constitution of Islamic Republic of Pakistan, 1973; hence, is ultra vires the Constitution and is accordingly struck down. Above are the reasons of our short order of even date which reads as following;

SHORT ORDER

For reasons to be recorded later, all these petitions are partially allowed, Section 27(2) of Khyber Pakhtunkhwa Local Government Act, 2013 substituted vide Khyber Pakhtunkhwa Local Govemment (Amendment) Act No. XXV of 2019 only to the extent of envisaging for holding Election for Village Council and

Neighbourhood council, as the case may be, on non-party basis are struck down being ultra vires Anicle 17 of the constitution of Islamic Republic of Pakistan, 1973 ("Constitution,). Similarly, part-Il of l lth schedule to Khyber Pakhtunkhwa Local Government Act, 2013 inserted through Khyber Pakhtunkhwa Act No. XXV of 2019 to the extent of envisaging for election on non-party basis is also held ultra vires Article 17 of the Constitution and as a consequence thereof, the ongoing Election scheduled by the Election Commission of Pakistan through Notification dated 25.10.2021 for Election of Village Council and Neighbourhood Council shall be held on Party Basis.

2.The Provincial Government as well as the Election Commission of Pakistan are directed to issue necessary direction to the Retuning Officer to accept nomination papers from the candidates/aspirant for contesting Election for Village Council and Neighbourhood Council; on Party Basis w.e.f. 04.11.2021 as per schedule notified through Notification dated 25.10.2021 by the Election Commission of Pakistan. It is, however, funher clarified that Election of Tehsil/City Councils, VillageAteighbourhood Councils to the seat of Mayor or Chairman and Members of Village ') CouncilsA.{eighbourhood Councils of District Malakand, Bajaur, < Mardan, Swabi, Peshawar, Nowshera, Kohat, Karak, D.I.Khan, Bannu, Tank, Haripur, Khyber, Mohmand, Charsadda, Hangu and Lakki Marwat of Khyber Pakhtunkhwa Province shall be held as per schedule issued by the Election of Pakistan through Notification dated 25.10.2021, which shall be implemented in letter & spirit.

All Writ Petitions stand disposed of in the above v terms.

ANNOUNCED.

02.11.2021 E

JUDGE

JUDGE

I

Haldsr Shah SSS (Larg6r Bench) Justico Rooh-ul-Amln Khan, Ju3tlce ljaz Anwar & Justice Syed A6had Ali