ORDER SHEET

Judgment Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. D – 2703 of 2016

Before :

Mr. Justice Nadeem Akhtar

Mr. Justice Aziz-ur-Rahman

Petitioners : Nadar Shah and 10 others, through

M/S Haider Waheed and Basil Nabi Malik Advocates.

Respondent No.1 : Province of Sindh, through

Mr. Mukesh Kumar G. Karara, Additional A.G. Sindh.

Respondent No.2 : Election Commission of Pakistan, through

Mr. Dilawar Hussain, Standing Counsel.

Dates of hearing : 17.05.2016 and 18.05.2016.

J U D G M E N T

NADEEM AKHTAR, J. – Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (‘the Constitution’), the petitioners have prayed that Rule 42(A) of the Sindh Local Councils (Elections) Rules, 2015 (‘the 2015 Rules’), be declared ultra vires its parent statute ; namely, the Sindh Local Government Act, 2013 (‘the 2013 Act’), as well as the Constitution. They have further prayed that the respondents be directed to allow them to join the political party in terms of the intimations sent by them in this behalf, and/or even otherwise. Consequential relief of injunction has also been sought by the petitioners.

2. The main questions involved in this matter are, whether the statutory right of an independent returned candidate under Section 33 of the 2013 Act to join a political party of his choice subsequent to his election can be denied, restricted or curtailed by virtue of a subordinate legislation ; and, whether the amendment made in this behalf after the announcement of the schedule of local bodies elections, is valid or is of no legal effect in view of the order passed on 15.04.2016 by the Hon’ble Supreme Court in Civil Appeals No. 760 to 786 of 2016.

3. Relevant facts of the case, as averred by the petitioners, are that they are members of various Councils in District Shikarpur having contested the local bodies elections successfully as independent candidates. Respondent No.2 Election Commission of Pakistan issued Notification dated 04.05.2016, whereby schedule was announced for filling up the indirect seats in District Councils, Municipal Committees, Town Committees, Municipal Corporation, District Municipal Corporations and Metropolitan Corporation relating to the Province of Sindh, and members of the electoral college of concerned Councils, Committees and Corporations were called upon to elect the members against seats reserved for women, labourers / peasants, youth and non-Muslims, as provided in Section 18-A of the 2013 Act. This Notification in respect of reserved seats was issued subsequent to the local bodies elections of District Councils, Municipal Committees, Town Committees, Municipal Corporation, District Municipal Corporations and Metropolitan Corporation in the Province of Sindh. Petitioner No.1 Nadar Shah, who is the District President Shikarpur of Pakistan Muslim League (Functional), addressed a letter to the Election Commissioner Sindh conveying his concern and reservations that in case election for reserved seats is held in pursuance of the above notification, there will be no participation of independent candidates as Section 18-A of the 2013 Act provides the procedure for election for reserved seats on party basis ; time should have been allowed to returned independent candidates to join any political party or to form independent group in order to participate in the election for reserved seats ; and, the applications of independent candidates, including those of the petitioners, in this behalf were not being entertained by respondent No.2. In view of his above concern and reservations, clarification and guidance were sought through this letter by petitioner No.1.

4. It is stated that the respondents did not respond to the above letter. Nonetheless, the petitioners sent intimation notices in writing to the Returning Officers and District Returning Officer concerned that they have joined Pakistan Muslim League (Functional). The grievance of the petitioners is that respondent No.2 has refused to allow them to join the said political party in view of Rule 42(A) of the 2015 Rules. In this background, they have filed this petition seeking the relief noted above.

5. Mr. Haider Waheed, learned counsel for the petitioners, contended that refusal / rejection of the petitioners’ intimation for joining the political party of their own choice by the respondents by relying on Rule 42(A) is misconceived and arbitrary. Three main arguments were advanced by him in support of this contention. His first ground of attack was that the petitioners are entitled to join a political party of their own choice under Section 33 of the parent statute, that is the 2013 Act, which provides that independent candidates elected as members of Councils may join any political party subsequent to being declared as returned candidates, and no time limit has been prescribed for this purpose in the said Section. Whereas, Rule 42(A) of the 2015 Rules, which is a subordinate legislation, provides that an independent candidate elected under the 2013 Act may join a political party within seven (07) days of the publication of his name in the official gazette as returned candidate. He submitted that such statutory right granted to independent candidates / petitioners by the parent statute cannot be curtailed or taken away by the subordinate legislation. In support of this submission, the learned counsel relied upon (1) National Electric Power Regulatory Authority V/S Faisalabad Electric Supply Company Limited, 2016 SCMR 550, (2) Suo Motu Case No.11 of 2011, PLD 2014 S.C. 389, (3) Mst. Ummatullah through attorney V/S Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others, PLD 2010 Karachi 236, (4) Mushtaq Ali Shah V/S N.E.D. University of Engineering and Technology, Karachi and 3 others, 2010 PLC (C.S.) 392, (5) Abdul Sattar Chughatai Malik V/S Pakistan Bar Council through Secretary and another, PLD 2007 Lahore 170, and (6) Hirjina Salt & Chemicals (Pak.) Ltd., Karachi V/S The Union Council, Gharo and another, PLD 1972 Karachi 145.

6. In order to elaborate his second argument, Mr. Haider Waheed referred to the order passed on 15.04.2016 by the Hon’ble Supreme Court in Civil Appeals No.760 to 786 of 2016, whereby it has been ordered inter alia that all the reserved seats as prescribed under Section 18 of the 2013 Act shall be filled up in terms of Section 18-A of the 2013 Act, which will be revived and such amendment will be brought into effect by the Province of Sindh (respondent No.1 herein) immediately. He pointed out that Section 18-A was inserted on 28.10.2014 in the Act of 2013, but was omitted therefrom on 12.08.2015 prior to the local bodies elections held in the Province of Sindh in the year 2015. He stated that in compliance of the aforesaid order, Section 18-A was revived by respondent No.1 on 25.04.2016 through the Sindh Local Government (Fourth Amendment) Act, 2016, whereafter the schedule for election for the reserved seats was announced by respondent No.2 on 04.05.2016. He submitted that in order to hold elections for reserved seats in compliance of the aforesaid order passed by the Hon’ble Supreme Court, necessary amendments ought to have been made by respondent No.1, particularly in the Rules of 2015, instead of reviving only Section 18-A. He argued that such amendments were/are necessary in view of the erroneous and inaccurate legal position emerged after revival of Section 18-A that reserved seats could only be allocated to candidates of political parties thus depriving the independent candidates from exercising their discretion and statutory right under Section 33 ibid to join a political party of their choice. Learned counsel submitted that the impugned Rule 42(A) is liable to be declared ultra vires, since the same, as it stands, would result in depriving independent candidates of their statutory right to have representation in the reserved seats to various Councils, and also in disenfranchising the rights of the electorate who had elected independent candidates and sought their representation in the reserved categories as well.

7. The third argument of Mr. Haider Waheed was that the notification dated 01.09.2015 issued by respondent No.1, whereby the impugned Rule 42(A) was introduced, is of no legal effect in view of the aforesaid order passed by the Hon’ble Supreme Court on 15.04.2016, as it was issued by respondent No.2 vide notification dated 26.08.2015 after announcement of the schedule of the Sindh local bodies elections 2015. He contended that amendments made in the 2013 Act in relation to the election process by show of hands instead of secret ballot have been struck down by the Hon’ble Supreme Court on the ground that the same were made after announcement of the election schedule. He argued that since the present election for reserved seats is a continuation and part and parcel of the local bodies elections, the above principle laid down by the Hon’ble Supreme Court shall also apply to the impugned Rule 42(A) as the notification in this behalf was issued after commencement and during the process of the local bodies elections. In the end, it was prayed by the learned counsel that the impugned Rule 42(A) of the 2015 Rules be declared as ultra vires the parent statute and be also struck down in view of the aforesaid order passed by the Hon’ble Supreme Court on 15.04.2016 ; and, reasonable time be granted to the petitioners to join political parties of their choice so as to give effect to the statute as opposed to frustrating its object and purpose.

8. Mr. Mukesh Kumar G. Karara, learned Additional Advocate General Sindh, has strongly opposed this petition and the submissions made by the learned counsel for the petitioners. He submitted that the impugned Rule 42(A) was introduced much prior to the gazette notification dated 03.12.2015 notifying all independent candidates, including the petitioners, as returned candidates ; the impugned Rule 42(A) was fully applicable to the case of the petitioners who had seven days’ time from the date of the notification dated 03.12.2015 to join the political party of their choice ; since they did not exercise their right within the prescribed period, they cannot seek extension therein or exemption therefrom ; the schedule for reserved seats was announced by respondent No.2 on 08.01.2016, which has been issued again on 04.05.2016 in view of the order of the Hon’ble Supreme Court, therefore, it cannot be said that the impugned Rule 42(A) was inserted after announcement of the schedule ; and, in case the petitioners wish to avail their remedy after revival of Section 18-A in compliance of the order passed by the Hon’ble Supreme Court, they should seek their remedy before the Hon’ble Supreme Court and not before this Court. He further submitted that the procedure for elections for the reserved seats and for independent candidates for joining a political party, has not been specifically provided for under the 2013 Act, therefore, Section 71 of the 2013 Act will be attracted for removal of any difficulties, which provides savings of the provisions of the Representation of the People Act, 1976 (‘the 1976 Act’).

9. In reply to the contention of the learned counsel for the petitioners that the 2015 Rules, being a subordinate legislation, cannot override the parent statute, learned AAG relied upon Section 153 of the 2013 Act, which provides that where the 2013 Act makes any provision for anything to be done but no provision or sufficient provision has been made in respect of the Authority by whom, or the manner in which it shall be done, then it shall be done by such Authority and in such manner as may be prescribed. According to him, in view of Section 153 ibid the right of an independent candidate to contest election under Section 33 of the 2013 Act and to join a political party subsequently, is governed by the manner as may be prescribed under the 2015 Rules and the law ; and thus, the impugned Rule 42(A) providing a specific time frame to returned independent candidates to join political party, cannot be deemed to be ultra vires either the 2013 Act or the Constitution.

10. The next objection of the learned AAG was that the petitioners are not aggrieved persons within the meaning of Article 199 of the Constitution as they have not filed any letter from the leader of any political party certifying that they have joined such political party, nor has the leader of any political party informed respondent No.2 in this behalf. In support of this contention, he relied upon Rule 3 of the National Assembly and Provincial Assemblies Allocation of Reserved Seats of Women and Non-Muslims (Procedure) Rules, 2002 (‘the 2002 Rules’).

11. Regarding the validity of the impugned Rule 42(A) after the order passed on 15.04.2016 by the Hon’ble Supreme Court, learned AAG contended that only the amendments in relation to election by show of hands have been declared to be of no legal effect, and the other amendments, including the impugned Rule 42(A), have not been affected by the said order. In support of this contention, he submitted that the amendments brought into effect by respondent No.1 as regards introduction of 5 per cent reserved seats for youth and increase in the number of reserved seats for women from 22 per cent to 23 per cent, have been held to be valid and operative in the said order by the Hon’ble Supreme Court.

12. Exercising his right of rebuttal, learned counsel for the petitioners contended that Section 71 of the 2013 Act and the savings of provisions of the 1976 Act, are not applicable in the instant case because of the words “save as” used in the said Section 71, as savings of provisions of the 1976 Act would apply only in such situation which has not been specifically dealt with in the 2013 Act. He reiterated that Section 33 of the 2013 Act specifically provides statutory right to the petitioners to join political party subsequent to their election to the Councils, and no time for this purpose has been specified therein. He submitted that the order of the Hon’ble Supreme Court refers only to the original election schedule announced on 26.08.2015, and the present election to reserved seats are being held in pursuance thereof.

13. We have heard the learned counsel for the parties at length and with their valuable assistance have also examined the material available on record and the law cited at the bar. Mr. Dilawar Husain, learned Standing Counsel for respondent No.2 Election Commission of Pakistan, adopted the arguments advanced by the learned Additional Advocate General Sindh.

14. Section 3(xvii) of the 2013 Act defines ‘Council’ as a Corporation, Municipal Committee, Town Committee, District Council, Union Committee or Union Council, as the case may be. Section 18 of the 2013 Act deals with the composition of Councils consisting of such number of directly or indirectly elected members as provided in the said Act, or as may be determined by the Government (of Sindh) from time to time. Thus, Councils comprise of members elected directly as well as indirectly. Under Section 18 ibid, women, youth, non-Muslim and labour or peasant members of the Councils, to the extent of the percentage provided therein, are elected for the reserved seats in the manner provided in Section 18-A of the 2013 Act, which was inserted on 28.10.2014 by Sindh Act No.XVIII of 2014, but was omitted on 27.08.2015 by virtue of Sindh Act No.XXXVIII of 2015. The said Section 18-A has now been revived through Sindh Act No.XV of 2016 on 26.04.2016 in compliance of the order passed on 15.04.2016 by the Hon’ble Supreme Court of Pakistan in Civil Appeals No.760 to 786 of 2016. It is an undisputed position that elections for the reserved seats in the Province of Sindh are being held by the respondents in compliance of the aforesaid order passed by the Hon’ble Supreme Court, the operative part (paragraph 2) whereof reads as under :

“2. After hearing the learned ASCs for the parties at length, for the reasons to be recorded separately, these appeals are partly allowed in the following terms:-

(i) The amendment brought into effect by the Province of Sindh Local Government (Third Amendment) Act, 2015 (Sindh Act No.XXXVIII of 2015) with effect from 25.8.2015, as regards introduction of 05 percent reserved seats for “Youth” and increase in the number of reserved seats for women from 22 percent to 33 percent, is held to be validly legislated ; thus, to remain operative.

(ii) With the consent of the appellant and respondents No.1, 3 & 9, all the reserved seats as prescribed under section 18 shall be filled up in terms of section 18A of the Sindh Local Government Act, 2013, which will be revived and such amendment will be brought into effect by the appellant immediately. In case requisite legislative amendment is not made within two weeks, these seats shall be filled up in the manner as otherwise prescribed by law.

(iii) The elections for the posts of Mayor, Deputy Mayor, Chairman and Vice Chairman are to be held under the Constitution and the law i.e. the Sindh Local Government Act, 2013, therefore, it is within the competence of the Sindh Government to legislate law to hold such elections either through show of hands or secret ballot. However, in the present case, since such amendment has been brought into effect under section 18 (ibid) on 18.1.2016, after the announcement of Election Schedule on 26.8.2015, therefore, such amendment is of no legal effect, and as per the Sindh Act No. XXXVIII of 2015, the ensuing elections for these posts will be held through secret ballot.

(iv) All notifications regarding transfers and posting of bureaucrats issued by the appellant after the date of announcement of Election Schedule for Sindh Local Bodies i.e. 30.5.2015, without prior approval from Respondent No.6, the Election Commission of Pakistan, are declared to be without jurisdiction and of no legal effect.

(v) The Election Commission of Pakistan shall ensure completion of remaining election process of local bodies in Sindh for the reserved seats as well as for the office of Mayor, Deputy Mayor, Chairman and Vice Chairman within 60 days from today.”

(Emphasis added)

15. Perusal of the above order shows that the amendment made on 25.08.2015 by the Sindh Act No. XXXVIII of 2015 as regards introduction of 05 percent reserved seats for youth and increase in the number of reserved seats for women from 22 percent to 33 percent, was held by the Hon’ble Supreme Court to be valid and thus it is to remain operative ; whereas, the amendment made in Section 18 ibid relating to election by show of hands instead of secret ballot, was declared to be of no legal effect on the ground that such amendment was brought into effect on 18.01.2016, after the announcement of election schedule on 26.08.2015. Regarding the reserved seats, it was ordered by the Hon’ble Supreme Court in paragraph 2(ii) that all the reserved seats as prescribed under Section 18 of the 2013 Act shall be filled up in terms of Section 18-A of the said Act, which will be revived ; and it was specifically ordered in paragraph 2(v) of the above order that Election Commission of Pakistan shall ensure completion of remaining election process of local bodies in Sindh for the reserved seats as well as for the office of Mayor, Deputy Mayor, Chairman and Vice Chairman within 60 days from the date of the above order. The words “completion of remaining election process of local bodies in Sindh for the reserved seats” appearing in the order of the Hon’ble Supreme Court, are extremely important, relevant and significant for the purposes of the instant petition, as they clearly indicate that the “election process of local bodies in Sindh” will be deemed to have been completed only upon “completion of the remaining process of election for the reserved seats” in terms of the order of the Hon’ble Supreme Court, and the present election for the reserved seats is the “remaining process” of the local bodies elections announced vide election schedule dated 26.8.2015.

16. It is to be noted that the petitioners have not challenged the present elections for the reserved seats. They have challenged only Rule 42(A) of the 2015 Rules mainly on the ground that their statutory right under Section 33 of the 2013 Act to contest elections as independent candidates and to join a political party of their choice subsequently, could not be denied by respondent No.2 on the pretext that they did not exercise such right within the period of seven days prescribed in Rule 42(A). For the sake of convenience and ready reference, Section 33 of the 2013 Act and the impugned Rule 42(A) are reproduced here :

“33. Election on party basis. – The elections to the Council under this Act shall be held on party basis :

Provided that any candidate may contest election as independent candidate and may subsequently join any party.”

“42(A). Joining of a political party by Independent Returned Candidate. – An independent candidate elected under the Act and these rules may join a political party within seven days of publication in the official gazette of the name of returned candidates of that category.”

17. It was conceded by the learned AAG that under Section 33 ibid, the petitioners are entitled to join any political party of their choice, however, his contention was that such right was subject to the condition / restriction imposed by the impugned Rule 42(A). With due respect to him, this argument cannot be accepted. It is an admitted position that the schedule for local bodies elections was announced on 26.08.2015 and the 2015 Rules were amended subsequently on 01.09.2015 by introducing the impugned Rule 42(A). By respectfully following the principle laid down by the Hon’ble Supreme that the amendment made in Section 18 of the 2013 Act was of no legal effect as it was made after the announcement of election schedule on 26.08.2015, and on the same touchstone, we are of the considered view that introduction of the impugned Rule 42(A) by amending the 2015 Rules on 01.09.2015 admittedly after the announcement of election schedule, is also of no legal effect. With profound respect to the learned AAG, his contention that other amendments, including the impugned Rule 42(A), have not been affected by the order of the Hon’ble Supreme Court, does not appear to be correct as only the above amendment in Section 18 ibid was held to be valid as it was made prior to the announcement of the election schedule. In view of the above, the other argument of learned AAG that the impugned Rule 42(A) is binding upon the petitioners as it was introduced much prior to the gazette notification dated 03.12.2015 notifying them as returned candidates, also has no force.

18. The petitioners have prayed that the impugned Rule 42(A) be declared ultra vires its parent statute (the 2013 Act) as well as the Constitution, on the ground that, being a subordinate legislation, it cannot restrict or take away their statutory right under Section 33 of the parent statute. Section 33 ibid provides that elections for the Council under the 2013 Act shall be held on party basis, but the proviso to this Section allows any candidate to contest election as an independent candidate, and it further allows such elected / returned independent candidate to join any party subsequent to his election. The impugned Rule 42(A), which applies only to independent candidate elected under the 2013 Act, also allows the independent candidate to join a political party, but within seven days of publication of his name in the official gazette as returned candidate of that category. The notification dated 01.09.2015 issued by respondent No.1 / Government of Sindh, whereby the 2013 Act was amended by introducing the impugned Rule 42(A), states that the same was issued by the Government of Sindh in exercise of the power conferred upon it by Section 138 of the 2013 Act read with entry (1) of Schedule VII thereto. Section 138 ibid empowers the Government to make rules “for carrying out the purposes” of the 2013 Act ; and such rules may provide for all or any of the matters enumerated in Schedule VII to the said Act and all matters incidental, consequential and supplemental thereto. Perusal of Schedule VII ibid shows that entry (1) relates to “Organization and conduct of elections under this Act and matters connected therewith or incidental thereto including bye-elections and disposal (!) election petitions”.

19. Indeed the Government is empowered under Section 138 ibid to make rules, but such power is restricted to the scope contemplated in the said Section and Schedule VII to the 2013 Act. The substantive and statutory “right” of an independent candidate under Section 33 ibid to join a political party subsequent to his election cannot be deemed to be a matter for carrying out the purposes of the 2013 Act, or “organization and conduct of elections” under the 2013 Act and matters connected therewith or consequential, incidental and supplemental thereto. In fact, such right of the independent candidate does not fall in any of the entries / matters enumerated in Schedule VII ibid. Thus, the Government had no power or authority to alter, modify, restrict, curtail, affect or take away the said statutory right by amending or making rules under Section 138 ibid. This being the position, the notification dated 01.09.2015 issued by the Government, whereby the impugned Rule 42(A) was introduced, appears to be coram non judice, and in any event, the impugned Rule 42(A) is liable to be declared ultra vires the parent statute (the 2013 Act). It is a well-established principle of law that rules made or framed under a statute cannot override the provisions of the statute under which they are made or framed and on which their very existence is dependent. The law on this point is so well-settled that hardly any authority is needed, however, reference in this context may be made to the cases reported as 2016 SCMR 550, PLD 2014 S.C. 389, PLD 2010 Karachi 236, 2010 PLC (C.S.) 392, PLD 2007 Lahore 170 and PLD 1972 Karachi 145, relied upon by the learned counsel for the petitioners. The impugned Rule 42(A) is also ultra vires the Constitution as Article 17(2) thereof guarantees the fundamental right of every citizen of Pakistan, not being in the service of Pakistan, to form or be a member of a political party subject to any reasonable restriction as specified therein.

20. We agree with the learned AAG that in the absence of a specified time frame for an independent returned candidate to join a political party, there will be political instability and a strong likelihood of horse-trading. In our humble opinion, the proper course and only solution to cater this problem is to make suitable amendment in Section 33 of the 2013 Act through proper legislation before the next local bodies election, which is within the competence of the Sindh Government, as observed in the order dated 15.04.2016 by the Hon’ble Supreme Court with reference to holding of elections either through show of hands or secret ballot.

21. With due respect to the learned AAG, we do not agree with him that the petitioners are not aggrieved persons within the meaning of Article 199 of the Constitution as they have not filed any letter from the leader of any political party certifying that they have joined such political party, nor has the leader of any political party informed respondent No.2 in this behalf. We have already held that Rule 42(A) impugned by the petitioners, whereby their statutory right under Section 33 ibid had been affected, is of no legal effect in view of the order passed by the Hon’ble Supreme Court on 15.04.2016, is ultra vires its parent statute, and the notification in respect thereof was coram non judice. This reason alone is sufficient to hold that this petition is maintainable. Moreover, reliance in this context by the learned AAG upon Rule 3 of the 2002 Rules, which is also a subordinate legislation, is untenable on the same well-settled principle on which the impugned Rule 42(A) has been held to be ultra vires.

22. It is an admitted position that the petitioners had sent several written intimations to the Returning Officers and District Returning Officer concerned appointed by respondent No.2, that they have subsequently joined the political party specified therein. These were intimations after joining, and not applications seeking permission to join. In response to these written intimations, the petitioners were advised in writing by the above officers that “Election Commission of Pakistan has still not announced any date for political party”, and, “whenever instruction (!) received from Election Commission of Pakistan then you submitted (!) such application according to instruction / rule”. It is, therefore, clear that the petitioners’ intimations for joining the political party have not been rejected till date for want of the letter / certificate in their favour from the leader of political party. Therefore, respondent No.2 / Election Commission of Pakistan will be at liberty to decide the case of the petitioners on this particular ground, if the law so permits.

23. Before parting with this case, we would like to express our appreciation to Mr. Haider Waheed, learned counsel for the petitioners, and Mr. Mukesh Kumar G. Karara, learned Additional Advocate General Sindh, for their valuable assistance and the strenuous efforts made by them in presenting their respective cases in a meticulous manner.

24. In view of the above discussion, Rule 42(A) of the Sindh Local Councils (Elections) Rules, 2015, is hereby declared to be of no legal effect in view of the order passed on 15.04.2016 by the Hon’ble Supreme Court in Civil Appeals No. 760 to 786 of 2016, as well as ultra vires its parent statute, the Sindh Local Government Act, 2013, and the Constitution ; and, the Notification dated 01.09.2015, whereby the impugned Rule 42(A) was introduced, is declared to be coram non judice to the extent of the impugned Rule 42(A). The petition and the pending application are allowed in the above terms with no order as to costs.

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