Hafeez-ur-Rehman Vs Chief Election Commissioner through Secretary, Election Commission of Pakistan, Islamabad and 02 others

PESHAWAR HIGH COURT. PESIIAWAR

(JUDICIAL DEPARTMENT)

WP No. 533-P/2023

Hafeez-ur-Rehman

Petitioner

Versus

Chief Election Commissioner, Through Secretary, Election Commission of Pakistan, lslamabad and others.

Respondents

For the Petitioner: M/s Ali Zaman, Noman-ul-Haq Kakakhel & Babar Khan Yousafzai, Advocates.

For the Respondents M/s Aamir Javed Advocate General, Mohsin Kamran Siddique & Shahbaz Khan, Advocates.

Barrister Syed Mudassir Ameer, Barrister Yaseen Raza & Qazi Jawad Ehsanullah, Advocates/Amicus Curie.

Date of Hearing 08.03.2023

JUDGMENT

SYED ARSHAD ALI, J.- This consolidated judgment shall decide instant Writ Petition as well as connected Writ Petitions No. 572-P & 592-P12023 because, in all the petitions, the Notification issued by respondent No.l dated 03.02.2023 suspending all Local Government functionaries throughout the Province of Khyber Pakhtunkhwa has been challenged.

2.The learned counsels appearing on behalf of the petitioners have argued that the petitioners in all the cases are - the Members of the Local Government which derives its €l' authority from the Constitution in the form of Article 140,4. of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution') which is a mandatory provision. The learned counsels have fuither explained that pursuant to the command of Article 140,4. of the Constitution, the Province of Khyber

Pakhtunkhwa has enacted the Local Government Act, 2ol3 which provides a complete mechanism for the election of Local Government and the period which the elected representatives would hold after being elected against various position i.e., as Nazims. The Election commission of pakistan has no authority to curtail the said period or even suspend the elected members; therefore, it is a fit case for intervention by this court because the Election commission of pakistan has failed to exercise its authority in accordance with law.

3.Mr. Mohsin Kamran Siddique, Advocate, the learned counsel representing the Election commission of Pakistan has argued that the impugned decision was passed in the public interest in order to provide level playing field to all the contesting parties so that the election is conducted fairly, and honestly as per its mandate provided under Article 220 of the constitution. It was a general order passed in the public interest, and there is no malafide on the part of the Election Commission of Pakistan while passing the impugned Notification; therefore, these petitions are not maintainable.

4.IWs Barrister Syed Mudasser Ameer & Qazi Jawad Ehsanullah, Advocates/Amicus Curie have argued that both the Local Government as well as the Election Commission of Pakistan derived their authority from the Constitution. The constitutional mandate of both the fora is exclusive and the Election Commission of Pakistan has never been given any authority to suspend or terminate the elected members of the Local Government without the due process f) and mechanism as provided under the Khyber Pakhtunkhwa Local Government Act, 2013 (Act of 2013'). Any authority exercised by the Election Commission of Pakistan without being clothed by the law would be struck down. The Amicus Curie referred to the various provisions of the Constitution, the Elections Act of 2017 , the Local Government Act of 2013 and the law down by the superiors Courts in the cases of Dr. Raia Aamer Zaman vs. Omar Avub Khan (2015 SCMR

1s03), A ys.

2012 sc 681), Muhammad Azhar siddiaue vs. Government

@LD 2010

Lahore 138), M.o.M. (paktstant vs. pakistan throueh secretarv cabinet Division, Government o" pakistan (pLD 2022 sc 439),Asad Ali Khan vs. province of punisb (pLD 2021 SC 770) in support of their arguments.

5.We have given anxious consideration to the submissions of learned counsels for the parties as well as the learned Advocates/Amicus curie and have perused the record with their able assistance.

6.On lSth January 2023 on the advice of the then chief Minister Khyber Pakhtunkhwa the provincial Assembly of Khyber Pakhtunkhwa stood dissolved in terms of Article 224 (2) of the constitution. It is the command of Articre 224(2), read with Article 105(3) of the constitution that when a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, the result of the election shall be declared not later than 14 days after the conclusion of the course. Similarly, sub- article (3) of Article 105 of the constitution commands that the Governor, pursuant to the dissolution of the Provincial Assembly, shall appoint a date, not later than ninety days from the date of dissolution for holding a general election to the Provincial Assembly and thereafter appoint a caretaker Cabinet. In the present case, so far, the Governor of the Province has failed to fulfil his constitutional obligation, and

O

4 no date has been appointed for the election of the Provincial Assembly in terms of Article 105(3) of the Constitution.

7.The mandate of the Election Commission of Pakistan is to conduct the election and to make arrangements as necessary to ensure that the election is conducted honestly, justly, fairly, and in accordance with law and that the comrpt practices are guarded against as provided under Article 218(3)

of the constitution. Similarly, Anicle 220 ofthe constitution commands the authorities in the Federation and in the province to assist the commissioner and the Election commission in the discharge of his or their functions.

8.Impugned before us is the Notification of the Election commission of pakistan dated 03.02.2023, which reads as under: -

ELECTION COMMISSION OF PAKISTAN

NOTIFICATION

Islamabad, the 3'd February, 2023-05-23 F.No. 2(lt''n23-coord.- VHEREAS, the Election commission of Pakistan is charged with the constitutionar duty to organize and conduct elections in terms of Article 2ls(3) of the ionstituiion of the Islamic Republic of Pakistan and to make such arrongements as are necessary to ensure that the election is conducted honestly, justly, fairly ,ni in accordance with the law and that coruupt practices are guirded against. AND WHEREAS, it has become imperative that the Election Commission shall take all necessqry steps under the prevalent laws to prevent any action on the part of the Local Government Institutions Khyber Pakhtunkhwa and cantonment Boards in the provinces of Punjab and Khyber Pakhtunkhwa that amounts to influence the resulfi ;f upcoming General Elections to the Provincial Assemblies of punjab and Khyber Pakhtunkhwa and to provide level playing /ield to the polrtical parties and contesting candidate s :

Now THEREF)RE, in exercise of the powers conferred upon it under Article 218(3) of the Constitution read with Section 4 and Section 8(c) of the Elections Act, 2017 and all other powers enabling it in that behalf, the Election Commission of Pakistan is pleased to direct that: All Local Government functionaries in the Khyber pakhtunkhwa Province (chairman Neighbourhood/village councils, Members Ne i ghb ourhood/village council s, Mayor city c ouncil s/chairman Tehsil Councils, Members city/Tehsil councils, etc) including cantonment Boards (Presidents, General councillors, vice presidents and Members on Reserved seats) in the Provinces of Punjab and Khyber pakhtunkhwa shall remain suspended till the onnouncement of results of the General Elections to the Provincial Assemblies of punjab and Khyber Pakhtunkhwa. The Care-taker Provincial Governments shall ensure that the usual functions of sanitation ond cleanliness may not affect during the period of suspension.

By Order of the Election Commission of Pakistan.

sd/--- (Omar Hamid Khon)

Secretary Election Commission of Pakistan.

9.The question before us is the Authority of the Election Commission of Pakistan to have issued the ibid Notification and if so whether any circumstances existed on the date of Notification warranting suspension of all Local Government functionaries till the announcement of the result

of the election of the provincial Assembly for which a date is yet to be appointed.

10.Article 140A of the constitution commands that each Province shall, by law, estabrish a local government system and devolve political, administrative, and financial responsibility, and authority to the elected representatives of the local governments. This command is couched in the imperative and mandatory terms by the use of the word ,shall, binding the provinces to make the law. It would be important to note that the form and structure of the Local Government have never remained the subject of any of the constitution of Pakistan, however, the establishment of the Local Government in the past was regulated through the Act of the appropriate legislature and pursuant to Article 140,{ of the Constitution, the latest law on the subject in this Province is the Khyber Pakhtunkhwa Local Government Act, 2OI3 (,,Act of 2013,). The Act of 20t3 comprehensively deals with the Locar Governments, Local areas, the constitution of the local govemments at various levels, supervision of the local governments, responsibility, and enforcement of laws, local council election, etc.

1 l. In Imrana Tiwana's caser , the Apex Court while explaining and interpreting the Executive Authority of the Province viz-a-viz the mandate of Article l40A of the Constitution has held that both should be read in harmony, none of the Article overrides the other, both the provisions provide a scheme for a representative government and 4 participatory democracy in the country. These provide a scheme to establish Local Government and articulate a framework within which the Provincial Government must function. The authority conferred on the province and the responsibilities devolved on the Local Government formed Lahore Development Authority through DG and others vs. Ms. Imrana Tiwana and others (2015 SCMR

part of a common scheme. These are not to be used as trumps.

one cannot cancel the other. These are co-equal norms. They weave the constitutional fabric.

12.The Apex Court in the case of Raja Rab Nawaz2 has laid much emphasis on the existence of Local Government being the third tier of government responsible for decision- making in those policy areas which have a direct impact on the lives of local citizens, e.g., urban regeneration, housing, schools, employment and social security, health, arts, culture and sport, local public transport, water and energy, and regional planning. In the said areas, locar citizens must have the opportunity to exert direct influence on policy-makers and thus participate in the decision-making process. The local self- government not only has a legal and a political dimension, but it also has sociological connotations, namely, it directly affects community life within a demarcated locality. In the developed democracies, local self-government has contributed substantially to social and economic development, and the emergence of civil society and its importance for democratic development has been recognized consistently all over the world.

13.When elections to the Local Govemments were held for terms of five years under Section 30(1) of the Punjab Local Government Act, 2013, the Provincial Assembly of Punjab had amended the Punjab Local Government Act, 2013 through the Punjab Local Government Act, 2019 whereby through Section 3(l) of the Act of 2019 the Local Government constituted under the Act of 2013 was dissolved. The same / was challenged before the Apex Court under Article l8a(3) of the Constitution. The Apex Court in the case of Asad Ali Khan3 while declaring Section 3 of the Act of 2019 as ultra vires, held in para-23 that:-

2.Raja Rab Nawaz vs. Federation ofPakistan through Secretary Defence and others (2013 SCMR 1629).

3.Asad Ali Khan and others vs. Province ofPunjab through Secretary Govemment ofPunjab and others (PLD 2021 Supreme Court 770).

\,r "Admittedly, the local governments, Punjab were political Governments and had ffices in fundamental right as provided in the Constitution to runfor their duration as provided by law. As held in Imrana Tiwana's case (supra), the province has no power to cancel local government creoted under Article I40A of the Constitution. The local governments as per law were entitled to functtonfor the duration offive (05) years as provided in the Act of 2013 and implement the schemes, which they have promised to the voters .from their constituencies. Such could not have been eroded by making provision of Section 3 of the Act of 2019, as it not only tramples the elected local governments but also tramples upon the fundamental rights of the citizenry, who have voted to elect the local goyernments. This could only be considered as qn act for which the provision in Clauses (I) and (2) of Article 8, in Chapter t of Part II, of the Constitution, has been made".

Later, the Apex Court in the case of M.O.M. (Pakistanla has reaffirmed the law laid down in Imrana Tiwana ond Raja Rab Nawaz coses (supra).

14.The survey of the aforesaid case law would show that the genesis of the Local Government is the Constitution itself (1404) which bounds the Province to regulate the institution of Local Government, the essential third tier of a democratic setup of the country. The very object is that the Local Government should function as an institution at grassroots level where the local people are able to regulate their social, economic and political affairs through an independent manner. The mandate of Constitution is that this institution should work with continuity and any intemrption or halt in the process was never approved by the superior court of the country on the touchstone of Anicle 32 and Article l40A of the Constitution.

51.15. Similarly, oS stated above, the Election Commission of Pakistan is a body formed and constituted under the authority of the Constitution itself having the duty to organize and conduct the election and to make such

4.M.Q.M. (Pakistan) and others vs. Pakistan through Secretary Cabinet Division, Govemment of Pakistan and others (PLD 2022 Supreme Court 439).

arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly, and in accordance with law and the comrpt practices are guarded against. Under Article 220 of the constitution, all executive authorities in the Federation and the Provinces are required to assist the commissioner and the Election commission in the discharge of his or their functions. The Act of z0l7 is also a comprehensive code on the subject of the election that provides in detail and encompasses the wholesome process of election by prescribing a thorough mechanism thereto and a specific methodology for the resolution of disputes arising in connection therefrom. Chapter-X of the Act of 2Ol7 comprehensively deals with the offences of comrpt practices during the process of election and the powers of the Election Commission of Pakistan to guard against bribery, undue influence, misconduct during the election, tampering with papers, illegal practices, regulation of publicity, etc. Any violation of the Code of Conduct by any officer is visited by penalty and if any person is found involved in any comrpt practices, he can be prosecuted and sent for trial. It is, thus, evident that the Election Commission is charged with the duty to organize and conduct the election. It is responsible not only for conducting the election itself but also for making all necessary arrangements for the said purpose before the Election Day.

16.Indeed, it is the Constitution itself that has conferred such a responsibility on the Election Commission of Pakistan, whereas the Election Act has been enacted further o regulating the duties and functions of the Election Commission of Pakistan so that the mandate of the Election Commission in respect of fair election is achieved through a structured mechanism. The close perusal of the Election Act, more particularly Chapter-X empowers the Election Commission of Pakistan to take necessary penal actions as and when required in the circumstances of particular case when

any officer of the Election Commission of Pakistan, Provincial Government or even a private person hampers or disturbs the smooth process of election, the said penal act can be resorted to nevertheless preventive measures can also be adopted to guard against any colrupt practices during the process of election i.e., that commences from the day when the election program is announced.s Supreme Court of India in the case of Ashok Kumar6 has explained the term election as "the term 'election' as occurring in Article j29 has been held to mean and include the entire process fro* the issue of the Notification under Section 14 of the Representation of the People Act, 195I to the declaration of the result under Section 66 of the Act"

The above discussion brings us to the conclusion that the effective role of Election Commission starts when the date for commencement of election is announced and no such date so far has been announced.

17.It is trite that where a statute prescribes the manner in which the power has to be exercised, the power must be exercised in that manner alone. A Statutory authority is bound to proceed in accordance with law and exercise its jurisdiction within four corners of the statute and where a statute confers a special affirmative power, the use of any general power relating to the subject matter is negatived. Where a power is conferred to achieve a certain putpose, the power can be exercised only for achieving that purpose, and it must be exercised reasonably and in good faith to effectuate that purpose.T

4 18. No doubt, as held by the Apex Court in the case of Workers' Partv Pakistans, the Election Commission of

5.Election Commission of Pakistan vs. Javaid Hashmi and others (PLD 1989 SC 396).

6.ElectionCommissionoflndia throughsecretaryvs.AshokKumarandothers(AIR20005C2979)' 7. Durga Das Basu, Commentary on Constitution of India, 9th Edition Page 11593, I1606 & 11608.

8.Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others vs. Federation of Pakistan and 2 others (PLD 2012 Supreme Court 68 I ).

Pakistan has extensive powers to ensure transparency in the election process and pass an appropriate directions; however, the same is subject to review by the constitutional court more particularly when the discretion is exercised by the Election commission of Pakistan in a vacuum. Indeed, ensuring the existence of the rule of law in a system would imply that any executive authority or office while exercising constitutional or statutory functions to make a decision relating to public affairs, the said decision should be predictable, fair, well- reasoned, and formed after application of mind to the facts and circumstances of each and every case.

19.As stated above, neither the impugned decision nor we have any documents before us to pre-suppose the purpose behind the impugned decision suspending the basic, essential tier of self-govemment having a statutory authority and constitutional backing. Indeed, the impugned decision lacks reasons. The giving of reasons may among other things concentrate the decision-maker's mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed, and how the result has been reached; altematively alert the recipient to a justiciable flaw in the process. On the other side of the argument, it may place an undue burden on decision-makers; demand an appearance of unanimity where there is diversity; caII for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge. It is the relationship of these and other material considerations to the nature of the particular decision which will determine whether or not fairness demands reasons.e

9.R v Higher Education Funding Council, ex parte Institute of Dental Surger [1994] I WLR242 at256-7

!/' In Durga Das Basu, Commentary on Constitution of India, 9th Edition, at page 11375 it was observed that ,,It would be desirable that the reasons are stated in the order or in a contemporaneous record. Reasons are the link between the order and the mind of the maker."

20.In our legal dispensation Section 24_A was inserted to the General clauses Act, lg97 through Act No.

XI

of 1997, which stipulates.

"24-A. Exercise of power under enactments.

(l)Where, by or under any enactment, a power to moke any order or give any direction is conferred on any authority, ffice or person such power shall be exercised reasonably, fairly, justly andfor the advancement of the purposes of the enactment.

(2)The authority, office or person making any order or issuing ony direction under the powers conferred by or under any enactment sholl, sofar as necessory or appropriate, give reasons for making the order or, as the case may be for issuing the direction and shall provide a copy of the order or as the case may be, the direction to the person affected prejudicially ".

Section 24-A of the General Clauses Act, lB97 reiterates the principle that statutory power is to be exercised 'reasonably, fairly, justly and for the advancement of the purposes of the enactment' and further clarifies that an executive authority must give reasons for its decision. Any action by an executive authority which is violative of these principles is liable to be struck down. No other view is I permissible.lo

10.Muhammad Amin Muhammad Bashir Limited vs. Govemment of Pakistan through Secretary Ministry ofFinance, Central Secretariat, Islamabad and others (2015 SCMR 630). Muhammad Ashraf Tiwana and others vs. Pakistan and others (2013 SCMR I159) Habibullah Butto vs. Collector of Customs and another (2011 SCMR 1504) Secretary Ministry of Health, Govemment of Pakistan, Islamabad and another vs. Dr. Rehana Hameed and others (2010 SCMR 5l l)

Zian Yar Khan vs. The Chief Engineer, C.R.B.C. WAPDA D.l.Khan and another (1998 SCMR 2419) Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam Intemational Airport, Karachi and others (1998 SCMR 2268).

E" dl-

t2

21.In view of what has been stated above, we are of the considered view that the impugned Notification dated 03.02.2023 suspending the election of Local Government is not only beyond the authority of the Election Commission of Pakistan besides it lacks reasons, therefore, the said Notification is not sustainable in the eyes of law and requires to be set aside.

22.Resultantly, the instant Constitutional Petition, as well as the connected Constitutional Petitions No. 572-P & 5g2-Pl2O23 are allowed and accordingly Notification No. F. NO. 2(1) 12023-Coord dated 03.02.2023 issued by the Election Commission of Pakistan to the extent of suspending all Local Government functionaries in the Khyber Pakhtunkhwa province (chairman NeighbourhoodA/illage councils, Members NeighbourhoodA/illage Councils, Mayor city Councils/Chairman Tehsil Councils, Members City/Tehsil Councils etc) is hereby declared illegal and without lawful authority.

Above are the reasons of our short order of even date.

Announced I,

snNto@K,en rt?

JUDGE

Arshad Ali Nawab Shah CS (DB) Justice Rooh-ul-Amin Khan & Justic€ Syed

\t-l!G'F