Order Sheet

IN THE HIGH COURT OF SINDH, KARACHI

Constitutional Petition No. D – 3463 of 2010

___________________________________________________________

Date Order with signature of Judge .

Present

1. Mr. Justice Faisal Arab

2. Mr. Justice Nadeem Akhtar

1. For Katcha Peshi :

2. For hearing of Misc. No.8920/2010 (U/S 151 CPC) :

Petitioner : Dr. Raheela Magsi through

Mr. Shabbir Shah, Advocate.

Respondents No.1 & 2 : Province of Sindh and Governor of

Sindh through Mr. Shafi Muhammad

Memon, Addl. Advocate-General,

Sindh.

Respondent No.3 : Chief Election Commissioner

through Mr. Ashfaque Ahmed

Tagar, DAG.

Date of hearing : 18.5.2012.

O R D E R

Nadeem Akhtar, J. : Through this petition, the petitioner has impugned certain amendments purported to have been made in the Sindh Local Government Ordinance XXVII of 2001, hereinafter referred to as “the SLGO”, whereby Local Governments in the Province of Sindh were dissolved ; elected representatives of the people were removed, and in their place, non-elected and handpicked Administrators / bureaucrats were appointed ; the Local Government elections which became due in the year 2009 were not held ; and time for holding such elections was extended and finally was postponed indefinitely.

1. The petitioner is the President of the Local Council Association of Sindh and the former Zilla Nazim of District Tando Allahyar, and she intends to contest the forthcoming Local Government elections from the said District. It is the case of the petitioner that a debate under the National Reconstruction Bureau (‘NRB’) was organized in order to provide an efficient system of Government, and thereafter on 23.03.2000, a draft for establishment of Local Government was proposed by the Government of Pakistan in the light of the said debate. The aim for establishing Local Government was to “devolve power to the elected representatives at the grass root level ” for achievement of good governance. Thereafter identical laws were promulgated for all the four Provinces and accordingly on 13.08.2001, the SLGO was promulgated by respondent No.2 (Governor of Sindh) to achieve “good governance through institutionalized participation of people at the grass root level ”.

2. According to the petitioner, the most significant aspect of the new Local Government system was a departure from bureaucratic system introduced by the British Raaj based on the theory of colonialism, and thus a domination by the strong over the weak and the rule by a minority without the consent of the governed. Such departure from the bureaucratic system towards the new Local Government system was made to empower the people through “institutionalized participation of people at the grass root level”. For this purpose, each District / City District was sub-divided into Talukas / Towns which were further sub-divided into Unions, where 13 members from each Union were to be elected firstly by the residents of that Union and then those elected representatives of the Unions would in turn vote for the Taluka / Town Head (Taluka Nazim) and the District / City District Head (District / City District Nazim). The main object of this new Local Government system was to ensure that the political, administrative and financial responsibility by devolution of power is entrusted to the elected representatives at the lowest level.

3. The petitioner has stated that the first Local Government elections were held in the year 2001 whereafter Local Governments for all the Districts and City Districts of Pakistan were brought into being. After expiration of four years, new elections were held in the year 2005 in accordance with Section 150 of the SLGO. According to the petitioner, after expiration of the period of four years, next elections became due in the year 2009 under Section 150 of the SLGO, and therefore the Chief Election Commissioner (respondent No.3) was bound to conduct elections in the year 2009. However, elections were not held and were delayed on one pretext or the other. It is the case of the petitioner that all of a sudden on 17.02.2010 the Sindh Assembly passed Sindh Local Government Amendment Act, 2010, amending the SLGO whereby Local Governments were dissolved, Administrators were appointed in place of elected representatives and elections were postponed for a period of 120 days. Thereafter, another Amendment Act was passed by the Sindh Assembly and a number of Ordinances were promulgated one after the other by the Governor of Sindh (respondent No.3) amending the SLGO. Through this petition, the petitioner has impugned all the aforementioned Amendment Acts and Ordinances in respect of the SLGO, which are detailed below :-

(i) The Sindh Local Government (Amendment) Act, 2010, dated 17.02.2010, whereby a new Section 179-A was inserted after Section 179 in the SLGO providing dissolution of Local Governments, appointment of Administrators in place of elected representatives, and postponement of elections for a period of 120 days ;

(ii) The Sindh Local Government (Second Amendment) Ordinance, 2010, dated 23.02.2010, whereby Sub-Section (3) of the newly inserted Section 179-A in the SLGO was substituted by a new Sub-Section (3) ;

(iii) The Sindh Local Government (Third Amendment) Ordinance, 2010, dated 22.03.2010, whereby amendments were made in Sub-Sections (3) and (5) of the newly inserted Section 179-A of the SLGO and the time period for Local Government elections was further extended for a period of 165 days ;

(iv) The Sindh Local Government (Fourth Amendment) Ordinance, 2010, dated 03.05.2010, whereby further amendments were made in Sub-Section (5) of the newly inserted Section 179-A of the SLGO including postponement of the elections for a further period of nine (09) months ;

(v) The Sindh Local Government (Fifth Amendment) Ordinance, 2010, dated 23.08.2010, whereby elections were postponed for an indefinite period on a date to be fixed by the Government according to its discretion ; and

(vi) The Sindh Local Government (Fifth Amendment) Act, 2010, dated 22.09.2010, whereby elections were postponed for an indefinite period on a date to be fixed by the Government according to its discretion on the ground that it is impossible for the Government to hold Local Government elections in accordance with the time frame provided in Section 179-A of SLGO in view of the unprecedented floods in the country including the Province of Sindh.

4. Mr. Shabbir Shah, learned counsel for the petitioner, contended inter alia that representatives elected under the SLGO were unlawfully removed and were replaced by Administrators by the Government through the impugned amendment Act dated 17.02.2010 and the impugned Ordinance dated 23.02.2010. He further contended that the handpicked Administrators appointed by the Government are unlawfully utilizing Local Government funds that could be utilized only after authorization by the concerned Council. He also contended that the impugned actions of removal of elected representatives and appointment of Administrators by the Government has completely failed as the Administrators, who are bureaucrats / Government servants, have brought back the old bureaucratic system due to which not only the public is suffering, but the Local Government funds allocated for the welfare of the public are also being grossly misused. The learned counsel submitted that the very object of the impugned actions is to take over the control of administration and the Local Government funds from the elected representatives of the public and to hand over the same to the handpicked Administrators appointed by the Government.

5. The learned counsel for the petitioner invited our attention to Section 2(xvi) of the SLGO whereunder the Local Government includes (a) a District Government or a City District Government and Zilla Council, (b) a Taluka Muncipal Administration and Taluka Council, (c) a Taluka Muncipal Administration and Town Council, and (d) a Union Administration and Union Council. He also pointed out to us that for the formation of a Local Government the presence of concerned Councils that is Zilla Council, Taluka / Town Council and Union Council is mandatory under the said Section 2(xvi), and that Sections 35, 37 and 87 of the SLGO require the Councils to be composed of elected representatives. The learned counsel argued that in view of the above mandatory provisions of the SLGO, ‘Elected Representative’ is the very essence of the Local Government and there can be no Local Government if there is no local administration. Learned counsel further argued that by virtue of the impugned amendments institutional powers of all the officials, that is, Nazims, Naib Nazims and Councilors, have been given unlawfully only to one person, namely, the Administrator. He submitted that such unlawful and arbitrary delegation of powers has completely negated the very object of Article 140-A read with Article 32 of the Constitution. He then submitted that there was no provision at all in the SLGO for appointment of Administrators even for a single day, on the contrary, under Section 159 of the SLGO the Local Government, notwithstanding the expiry of its term, shall continue to hold office until the successor Local Government assumes office. The learned counsel emphasized that the said Section 159 was specifically inserted in line with the preamble of the SLGO especially to strengthen the object of the preamble, that is, “devolution of power to the elected representatives and institutionalized participation of the people at the grass root level ”. He submitted that “appointment” of non-elected persons instead of “election” of representatives of the public is not only against the preamble of the SLGO, but is actually contrary to the scope and object of the SLGO.

6. In continuation to his above submissions, Mr. Shabbir Shah further submitted that Section 107 of the SLGO was also inserted in line with its preamble whereby utilization of funds through any budget, scheme, project or even a grant is possible only with the approval of the concerned Council, and even an elected representative of the people cannot utilize such funds if the concerned Council does not approve the same with majority. He contended that this again proves that the primary object of the SLGO is “devolution of power to the elected representatives and institutionalized participation of the people at the grass root level ” as given in the preamble of the SLGO. He pointed out that after dissolution of the Local Governments, handpicked Administrators appointed by the Government have been allocating schemes, projects, funds and grants on adhoc basis arbitrarily in complete violation of the above referred provisions of the SLGO and the Rules made thereunder.

7. The learned counsel for the petitioner after inviting our attention to Section 150(4) of the SLGO submitted that the deliberate delay by the Government in holding the Local Government elections after expiration of four years term ended in the year 2009 is contrary to the said Section, which is reproduced below :-

“ 150. Authority for local government elections –

(1) …………………….

(2) …………………….

(3)……………………..

(4) The elections to the local governments shall be held every four years so as to enable their installation on the 14^th day of August of the year in which elections are held. ”

The learned counsel submitted that despite repeated promises to hold Local Government elections, the Government has failed to honour its commitment, and instead of holding the Local Government elections under the SLGO, the impugned amendments have been made therein by the Government one after the other with very short intervals which clearly indicates that the Government has no intention to hold the said elections. He further submitted that the impugned actions of the Government have violated the provisions of Articles 2, 2-A, 32 and 140-A of the Constitution, Sections 150(4) and 159 of the SLGO, the Rules made under the SLGO, and have also violated the valuable voting / fundamental rights of the public guaranteed by the Constitution.

8. Learned counsel for the petitioner further contended that the impugned Ordinance dated 23.02.2010 was re-promulgated again and again during very short intervals only in order to extend its life which actions are directly in conflict with the 18^th Amendment of the Constitution, specifically Article 128 thereof, as extension in the life of an Ordinance can be made now only once and only by the concerned House which was the Sindh Assembly in this case. He submitted that all the impugned Acts and Ordinances are also in direct conflict with the parent law, that is, the SLGO. He further submitted that the public at large and the petitioner in particular are aggrieved with all the impugned Acts and Ordinances as their valuable and fundamental rights guaranteed by the Constitution have been blatantly violated by the Government by not holding Local Government elections since the year 2009. He prayed that all the impugned Acts and Ordinances, being ultra vires the Constitution, nullity and of no legal significance, be declared as such.

9. During the course of the hearing, learned counsel for the petitioner referred to the proceedings before the Hon'ble Supreme Court in Constitution Petition No.77/2010 and Human Rights cases No. 13124-P/2011, 40303-P/2011, 40220-G/2011 and 43103-B/2011, and placed on record copies of some of the Orders passed therein. Relevant portions of the said Orders are reproduced below :-

Order dated 05.04.2012 :

“ 18. We have noted that in Balochistan the main problem is of socio-economic nature, which can only be solved, if the general public of the province is empowered by holding the election of the local bodies, which otherwise is the obligation of the Government in term of Article 32 of the Constitution, which provides :-

“The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such Institutions special representation will be given to peasants, workers and women.”

The Chief Secretary informed that he has recently taken over the charge and had no full knowledge, except the process of de-limitation, which is likely to be completed shortly and he will discuss this issue with the Chief Minister. He may do so but we are of the opinion that after passing of 18^th Amendment in the Constitution, under Article 140-A, each provincial government is bound by law to establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. It is not only the province of Balochistan but other provinces as well as Territory of Islamabad have not held election so far. We would like to have comments of all the Chief Secretaries, in this behalf. Learned Attorney General may seek instructions from all of them and submit statement under his own signatures.”

(Emphasis added)

Order dated 06.04.2012 :

“ 19. In response to our order dated 05.04.02012, the learned Advocate General, Balochistan, has placed on record a report on behalf of the Secretary Local Government with regard to non holding of elections. No such report has been received from other provinces, perhaps, on account of non-attending the Court by the learned Attorney General for Pakistan. Same process be repeated to the learned Attorney General and meanwhile notice be also issued to all the Chief Secretaries that they should appear, in person, under instructions to make the statement as to why provisions of the Constitution in terms of Articles 32 and 140-A are not being complied with, on the next date of hearing.”

(Emphasis added)

Order dated 12.04.2012 :

“ 13. In response to the notices, the Chief Secretaries of all the Provinces, except Chief Secretary, Balochistan, who has already submitted his report before this Court at Quetta on the last date of hearing, undertake to file their respective reports. The case is adjourned enabling them to consult their respective Governments and present schedules for holding local government elections under the command of the Constitution in terms of Articles 32 and 140-A (latter incorporated in pursuance of 18^th Amendment of the Constitution).”

(Emphasis added)

Order dated 30.04.2012 :

“ 25. All the Advocate Generals of the Provinces have appeared and stated that their respective Governments in principle have decided to enforce Article 32 read with Article 140A of the Constitution for holding the local bodies elections as early as could be possible ; however, they are facing some problems which they would like to explain at length before the Court on the next date of hearing. They have also stated that as electoral list is not available; therefore, we direct the Secretary, Election Commission of Pakistan to appear and submit latest position about the electoral list. This issue will be taken up, when the matter will be fixed at Islamabad.”

(Emphasis added)

Relying on the above referred Orders passed by the Hon'ble Supreme Court, learned counsel for the petitioner submitted that now there is no justification or excuse for the Government for not holding the Local Government elections or for further postponing the same.

10. Learned counsel for the petitioner then referred to the ‘Report on the Local Government Election Schedule on behalf of the Government of Sindh’ submitted by the Government of Sindh in the above referred proceedings before the Hon'ble Supreme Court. For the purposes of this petition, the contents of this Report are relevant and as such the same are reproduced below :-

“ Report on the Local Govt. Election Schedule

on behalf of the Govt. of Sindh

Further to the initial written reply of the Government of Sindh filed through the Chief Secretary Sindh on 12.04.2012, the report on behalf of the Government of Sindh is submitted hereunder :-

1. That after passing of order by the Hon’ble Supreme Court, there has been sufficient deliberations on the subject. Three meetings have been held on 18.04.2012, 25.04.2012 & 26.04.2012 at Government level.

2. That Provincial Government has decided that as far as possible suitable amendments in Local Government system 1979 would be made in consultation with the stakeholders and such legislation will be presented before the Assembly in shortest possible time.

3. That Provincial Government has decided that after finalization of Local Government law, notification for establishment of de-limitation authorities will be issued which will complete the process of de-limitation of Local Councils within four months time. The period is needed to meet the requirement of statute as well as the objections to be raised by general public with regard to de-limitation. This process will be completed in four months i.e. June, July, August & September, 2012.

That in the month of October 2012, the Provincial Government will be able to request the Election Commission of Pakistan to hold the Local Councils Election as per their schedule.

That Provincial Government by putting all resources together will be able to complete the process of Local Councils Election by the end of December, 2012.

That due to general elections ahead, the process of aforesaid elections may be affected.”

11. In support of his submissions, learned counsel for the petitioner relied upon the following reported cases :-

a. PLD 2006 Supreme Court 697 :

Wattan Party through President V/S Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others.

In the above cited case, in view of the statement given by the learned counsel for the Federal Government, the Federal Government was directed by the Hon'ble Supreme Court to do the needful for making the establishment and working of the Council of Common Interests functional expeditiously as far as possible but not later than six weeks.

b. SBLR 2010 SC 33 :

Dr. Mobashir Hassan and others V/S Federation of Pakistan, etc.

In this recent authority, the Hon’ble Supreme Court was pleased to follow the earlier decision given in the case of Wattan Party (supra) that it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent therewith, then to that extent the same is liable to declared un-Constitutional (Paragraph 74 at pages 118-119). In addition to the above, it was held inter alia by the Hon’ble Supreme Court in this recent authority that there is no cavil with the proposition that Article 8 of the Constitution, which is covered under Chapter-I of the Constitution and deals with fundamental rights, provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, to the extent of such inconsistency, shall be void ; and the State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this Clause shall, to the extent of such contravention, be void (Paragraph 50 at page 95).

c. PLD 1963 Supreme Court 486 :

Mr. Fazlul Quader Chowdhry and others V/S

Mr. Muhammad Abdul Haque.

In this authority the Hon'ble Supreme Court was pleased to hold inter alia that it is the general principle that the superior Courts have an inherent duty, together with the appurtenant power, to ascertain and to enforce the provisions of Constitution in any case coming before them ; that the Constitution being fundamental law of the State is higher in authority than any law, direction, or order made by anybody or any officer assuming to act under it ; and that in case of any conflict, the fundamental law must govern, and the act, direction, order or law in conflict with it must be treated as inoperative and void. (Relevant portions at pages 489, 503 and 504).

d. PLD 1997 Karachi 663 (Full Bench – Sindh High Court) :

Messers Noori Trading (Pvt.) Ltd. and others V/S The Federation of Pakistan and others.

In the above cited case, it was held inter alia by the learned Full Bench of this Court that Courts are duty-bound to give effect to the plain and unambiguous language used in the Constitution ; that the Constitution is essentially in the nature of a statute and therefore the same rules, no doubt, would apply for construing provisions of the Constitution as govern construction of statute ; that Constitution is the fountain-head of authority ; that the Courts themselves are creation of the Constitution and they derive their sustenance from it ; and that the Courts are bound to give true effect to the intention of the makers of the Constitution.

e. 2001 CLC 148 (Division Bench – Sindh High Court) :

Messers Brooke Bond Pakistan Limited through Chief Executive V/S Province of Sindh through Secretary, Ministry of Finance, Sindh and 3 others.

In this case, it was held by a learned Division Bench of this Court that it is a well settled principle of law that if any statute violates or infringes upon any provision of existing statutes, then such provision of the newly enacted statute would be void to the effect which offends or violates any provisions of an existing statutes ; and that when there is a conflict between a statute and any provision of the Constitution, then the provision of the Constitution is to prevail as it is the Supreme Law of the Land and all other laws whether Federal or Provincial are subservient to it (‘B’ and ‘C’ at pages 152 and 153).

12. Mr. Shafi Muhammad Memon, the learned Additional Advocate General representing respondents 1 and 2 (the Province of Sindh and the Governor of Sindh, respectively), opposed this petition on the grounds that this matter is subjudice before the Hon'ble Supreme Court and that it is not possible for the time being for the Government of Sindh to hold the Local Government elections. When we asked the learned Additional Advocate General about the reasons of the inability of the Government of Sindh for holding the elections, he made only one submission that the matter will be decided by the Sindh Assembly in due course for which no exact time frame can be given at this stage. We then inquired from the learned Additional Advocate General that if this was the stance of the Government of Sindh, then why a statement in writing was submitted before the Hon'ble Supreme Court confirming that the Government had decided in principle to hold elections, and why an undertaking was submitted before the Hon'ble Supreme Court by the Government of Sindh that elections will be held as early as could be possible. We also sought assistance of the learned Additional Advocate General on the point as to whether the Government, by not holding the elections, is or is not violating the provisions of Articles 32 and 140-A of the Constitution. With profound respect, the learned Additional Advocate General was unable to satisfy our above queries, nor any explanation was given by him for not complying with the undertaking given by the Government before the Hon'ble Supreme Court as well as for not complying with the provisions of Articles 32 and 140-A of the Constitution. No other submission was made by the learned Additional Advocate General.

13. Mr. Ashfaq Ahmed Tagar, the learned Deputy Attorney General representing respondent No.3 (Chief Election Commissioner) also opposed this petition on the grounds, firstly, that the Local Government elections are possible only when the matter is finally decided by the Sindh Assembly, and secondly, that the said elections cannot be held as the electoral lists have not yet been finalized. Nothing was submitted by the learned D.A.G. about the failure of the Chief Election Commissioner in discharging his functions and performing his responsibility / duty to hold Local Government elections under Section 150 of the SLGO. No other submission was made by the learned Deputy Attorney General.

14. In his rebuttal, the learned counsel for the petitioner submitted that the respondents are not justified at all in opposing this petition especially when the Government of Sindh had conceded before the Hon'ble Supreme Court that in principle it has decided to hold Local Government elections as early as could be possible. While reiterating his submissions, the learned counsel further submitted that, without prejudice to the above submissions made by him in support of this petition, his second line of argument is that the precious, valuable and fundamental right of a common citizen to vote and elect the representative(s) of his own choice, which right is guaranteed by the Constitution, has been completely taken away by the impugned Acts and Ordinances whereby handpicked bureaucrats have been appointed by the Government as Administrators in place of elected representatives. The learned counsel further submitted that fundamental right of a citizen to vote and elect representative(s) of his own choice guaranteed by the Constitution cannot be taken away either by the impugned Acts and Ordinances or by any other legislation which is or which may be contrary to or inconsistent with such fundamental right. In support of this contention, the learned counsel relied upon the following cases :-

a. 2005 SCMR 186 :

Khawaja Ahmad Hassaan V/S Government of Punjab and others.

In this case, the Government of Punjab issued a Notification to the effect that Town Nazim having lost confidence of the house would cease to perform functions till further orders and District Coordination Officer of the city would perform the duties of Nazim in his place. When the action was challenged, it was held inter alia by the Hon’ble Supreme Court that the impugned Notification could not have been issued because the main object of the Punjab Local Government Ordinance, 2001, was “to devolve political power and decentralize administrative and financial authority to accountable local governments for good governance, effective delivery of service and transparent decision making through institutionalized participating of the people at grass-roots level ” ; that the elected representative could not have been substituted by the District Coordination Officer of the city ; that Government could not nominate any bureaucrat to perform such functions which were required to be performed by an elected person ; and that the main object of the impugned action was to kick out certain Nazims. It was further held in the cited case that issuance of the said Notification smacked of malafides because the powers which were never conferred upon the Government have been exercised having no legal sanctity whatsoever behind it (‘E’ at page 216 and ‘DD’ at page 229).

b. PLD 1989 Supreme Court 66 :

Mrs. Benazir Bhutto and another V/S Federation of Pakistan and another.

In the above cited case, the Hon’ble Supreme Court was pleased to observe that the “Fundamental Right” conferred by Article 17(2) of the Constitution whereby every citizen has been given “the right” to form or to be a member of a political party which right comprises the right to participate in and contest an election. (‘C’ at pages 74–75).

The above authority was followed by the Hon’ble Supreme Court in the subsequent case of Mian Muhammad Nawaz Sharif V/S President of Pakistan and others reported as PLD 1993 Supreme Court 473 (‘F’ at page 558).

c. PLD 1989 Lahore 01 (Division Bench–Lahore High Court) :

Aitzaz Ahsan V/S Chief Election Commissioner and others.

In this case, valuable right to vote guaranteed by the Constitution was discussed and decided. It was held inter alia by the learned Division Bench that “The provision deals with the composition of the National Assembly for which law may be made. Sub-Article (2) of Article 51 does not lay down that a person shall be entitled to vote subject to any law. His entitlement is laid down by the Constitution itself. It cannot be abridged, limited or conditioned by any other provision of subordinate legislation. Method and procedure can be laid down in generality of powers granted to the Election Commission by the Constitution. According to its record – the electoral roll, all who are there, are entitled to vote. No other subordinate legislation providing for means to carry out the purposes of Constitution i.e. procedural laws can affect, amend, nullify, or clog the substantive right given by the Constitution” (‘G’ at page 11).

15. We have noticed that the above referred Report was submitted by the Government of Sindh before the Hon'ble Supreme Court on 30.04.2012 which fact is evident from the letter dated 04.05.2012 addressed to the Election Commission of Pakistan, Islamabad, by the Local Government Department, Government of Sindh. The Order dated 30.04.2012 was, therefore, passed by the Hon'ble Supreme Court in pursuance of the said Report submitted by the Government of Sindh. In the said Order dated 30.04.2012, it was clearly observed by the Hon'ble Supreme Court that all the Advocate Generals of the Provinces had appeared and had stated that their respective Governments had decided in principle to enforce Article 32 read with Article 140-A of the Constitution for holding the local bodies elections as early as could be possible. This clearly shows that the Government of Sindh / respondent No.1 not only admitted that holding of Local Government elections is a Constitutional requirement, but a firm commitment was also made by it in this behalf before the Hon'ble Supreme Court.

16. It is to be noted that before passing the aforementioned Order dated 30.04.2012, it was held by the Hon'ble Supreme Court vide Order dated 05.04.2012 that “…...... we are of the opinion that after passing of 18^th Amendment in the Constitution, under Article 140-A, each provincial government is bound by law to establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. It is not only the province of Balochistan but other provinces as well as Territory of Islamabad have not held election so far.” Moreover by Order dated 12.04.2012, the Hon'ble Supreme Court was further pleased to direct the Provincial Governments to present schedules for holding Local Government elections under the command of Articles 32 and 140-A of the Constitution.

17. The aforementioned findings given and Orders passed by the Hon'ble Supreme Court on the questions involved in this petition are binding on us, and obviously we cannot deviate from the said findings and Orders of the Hon'ble Apex Court. If the relief sought in this petition is examined separately, even then the conclusion would be that since the Local Government elections became due in the year 2009 under Section 159 of the SLGO, respondents 1 and 2 were duty-bound to fulfill the requirements of Articles 32 and 140-A of the Constitution by holding fresh elections, and the respondent No.3 was duty-bound to discharge his statutory functions and duties under Sections 150 and 164 of the SLGO for holding such elections. It is an admitted position that instead of fulfilling their functions and duties under the Constitution, respondents 1 and 2 amended the basic provisions of the SLGO by dissolving Local Governments and by substituting / appointing non-elected and handpicked persons as Administrators in place of elected representatives of the people. Articles 32 and 140-A of the Constitution, which ought to have been strictly complied with by respondents 1 and 2 are reproduced below for ready reference :-

“32. Promotion of local Government institution. – The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women. ”

“ 140-A. Local Government. – (1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government.

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

18. The contention of learned counsel for the petitioner that the impugned amendments are contrary to the preamble of the SLGO and are also directly in conflict with the parent law (the SLGO), appears to be correct. The preamble of the SLGO is reproduced below :-

“ An Ordinance to reconstruct and regulate

the local government

WHEREAS it is expedient to devolve political power and decentralise administrative and financial authority to accountable local governments for good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at grass root level. ”

While examining this aspect of the case, we managed to trace out the case of Fazal Dad V/S Col. (Rtd.) Ghulam Muhammad Malik and others, reported as PLD 2007 SC 571, wherein the Hon'ble Supreme Court was pleased to hold that “it is a settled law that preamble is always key to interpret the statute ”. Applying this principle laid down by the Hon'ble Supreme Court, we are of the view that the impugned amendments are indeed contrary to the preamble of the SLGO, as the object, intent, purpose and aspects of devolution of political power, decentralization of the administrative and financial authority to accountable Local Governments for good governance and institutionalized participation of the people at grass root level, specifically given in the preamble, have been completely defeated by the impugned amendments whereby Local Governments have been dissolved and the same have been substituted by appointment of non-elected and handpicked persons as Administrators in place of elected representatives of the people. Therefore, the impugned amendments cannot be allowed to remain in the field.

19. It is an admitted position that the entire concept, object, intent and purpose of the SLGO regarding devolution of power to and good governance through the elected representatives and institutionalized participation of the people at the grass root level has been completely changed, substituted and defeated by the impugned Acts and Ordinances whereby handpicked bureaucrats have been “appointed” as Administrators instead of “elected representatives”. It is a settled principle that where any provision is repealed and replaced by another provision then unless the intention is clear such amendment will not affect the vested rights. This view expressed by us is fortified by the law laid down by the learned Full Bench of the Hon'ble Supreme Court in the case of Trinity Private School and another V/S Mumtaz H. Hidayatullah and others, reported as 1997 SCMR 494.

20. As a result of the above discussion, the submissions made on behalf of the parties and the authorities / cases referred to above, we have reached to the following conclusion :

A. As observed and held by the Hon’ble Supreme Court, after passing of 18^th Amendment in the Constitution, each Provincial Government under Article 140-A is bound by law to establish a Local Government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments.

B. Admittedly the Local Government elections in the Province of Sindh became due in the year 2009. Therefore, respondents 1 and 2 were duty-bound to fulfill the requirements of Articles 32 and 140-A of the Constitution by holding fresh Local Government elections under Section 159 of the SLGO immediately when the said elections became due.

C. The respondent No.3 (Chief Election Commissioner) was duty-bound to discharge his statutory functions and duties under Sections 150 and 164 of the SLGO for holding such elections immediately when the said elections became due.

D. Respondents 1 and 2 had no authority or power to postpone the Local Government elections for any time period or indefinitely, either through the impugned Acts and / or Ordinances or otherwise.

E. Respondents 1 and 2 had no power or authority to amend the basic structure and provisions of the SLGO by dissolving Local Governments and by substituting / appointing non-elected and handpicked bureaucrats as Administrators in place of elected representatives of the people.

F. In view of the impugned amendments, most of the important and basic provisions of the SLGO, that is from Chapter I to Chapter XVIII comprising of 187 Sections, have become ineffective, inapplicable and redundant, such as, the composition of Local Areas and Local Governments, District Governments, Zilla Councils, Taluka and Town Muncipal Administration, Taluka and Town Councils, Union Administrations, Union Councils, the financial and accounts matters of all the above, internal control of all the above, the elections of all the above and managing transition of all the above.

G. The impugned amendments are liable to be struck down as they are contrary to the preamble of the SLGO, as the object, intent, purpose and aspects of devolution of political power, decentralization of the administrative and financial authority to accountable Local Governments for good governance and institutionalized participation of the people at grass root level, specifically given in the preamble, have been completely defeated by the impugned amendments whereby Local Governments have been dissolved and the same have been substituted by appointment of non-elected and handpicked bureaucrats as Administrators in place of elected representatives of the people.

H. The impugned amendments are liable to be struck down also in view of the authority, namely, 2005 SCMR 186 (supra) wherein it was held by the Hon’ble Supreme Court that the impugned Notification could not have been issued because the main object of the Punjab Local Government Ordinance, 2001, (which is pari materia with the SLGO) was “to devolve political power and decentralize administrative and financial authority to accountable local governments for good governance, effective delivery of service and transparent decision making through institutionalized participating of the people at grass-roots level ” ; and that Government could not nominate any bureaucrat to perform such functions which were required to be performed by an elected person.

I. The impugned amendments are liable to be struck down also in view of the above referred authorities, namely, SBLR 2010 Supreme Court 33, PLD 1963 Supreme Court 486, PLD 1997 Karachi 663 and 2001 CLC 148, wherein it has been consistently held that the Constitution being the fundamental law of the State is higher in authority than any law, direction, or order made by anybody or any officer assuming to act under it ; and that in case of any conflict, the fundamental law must govern, and the act, direction, order or law in conflict with it must be treated as inoperative and void.

J. As per the law laid down by the Hon’ble Apex Court, any further amendments or new legislation, other than the impugned Acts and Ordinances, if made by respondents 1 and 2 which are or which may be contrary to or in conflict / inconsistent with any of the provisions of the Constitution, including Articles 2, 2-A, 8, 32 and 140-A thereof, shall be inoperative, void and ultra vires the Constitution.

K. The impugned actions of the Government have violated the provisions of Articles 2, 2-A, 8, 32 and 140-A of the Constitution, Sections 150(4) and 159 of the SLGO, the Rules made under the SLGO, and have also violated the valuable voting / fundamental rights of the public guaranteed by the Constitution. The valuable voting / fundamental rights of the people of Pakistan guaranteed by the Constitution to vote and to elect representatives of their own choice cannot be taken away, abridged or sabotaged in any way through any type of legislation or action.

L. It is the duty of Superior Courts not only to give true effect to the provisions of the Constitution, but also to ensure that no provision of the Constitution is violated. Since the impugned Acts and Ordinances are in conflict with the basic and fundamental provisions of the Constitution, especially the valuable voting / fundamental rights of the people of Pakistan guaranteed by the Constitution to vote and to elect representatives of their own choice, the same are declared as ultra vires the Constitution, of no legal effect and void ab initio.

21. By short Order announced by us on 18.05.2012, this petition was allowed with the direction to the Government of Sindh to hold Local Government elections as envisaged under Articles 32 and 140-A of the Constitution of the Islamic Republic of Pakistan, 1973, within a period of ninety (90) days. It was also observed in the aforementioned Order that it is expected that the Election Commissioner shall be able to compile the electoral lists in due course of time to enable the Local Government to hold elections within the said period of ninety days. Foregoing are the reasons for allowing this petition.

J U D G E

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*CP D-3463-10 Local Bodies/Court Work/Orders DB/Desktop/ARK*