LAHORE: The ouster clause under Section 10A of the Punjab Local Government Act 2013 cannot impose fetters on the constitutional jurisdiction of court or the constitutional role of the Election Commission of Pakistan (ECP).
This was ruled by a larger bench of the Lahore High Court in a detailed judgement on the issue of Punjab government’s powers to conduct delimitation for local government polls.
The bench headed by Justice Syed Mansoor Ali Shah had already annulled powers of the provincial government to delimit union councils through a short order passed on Dec 31, 2013. Justice Farrukh Irfan Khan and Justice Atir Mahmood were the other two members of the larger bench.
Issuing a 91-page detailed judgement on Monday, the bench also decided that administrative branch of the court cannot be directed through a judicial order not to entertain and fix cases of a particular nature without providing the litigant the right to access to justice and place the case before a forum exercising judicial power.
It ruled that the view earlier taken by a single bench and a division bench in similar cases on the ouster clause was against articles 4, 9 and 10A of the Constitution and shall not be treated as a precedent.
The judgement read sections 8-10 of the PLGA 2013 and rules 3-8 of Punjab Local Governments (Delimitation) Rules 2013 were inconsistent with Article 218(3) read with Article 222(b) of the Constitution as they abridged and took away the constitutional role and obligation of the ECP besides offending articles 3, 4, 9, 14, 17, 19 and 25 of the Constitution.
It also ruled that the provisions of the Act were declared unconstitutional and, therefore, struck down. It set aside impugned orders of “delimitation authority” and final notifications by delimitation officers.
A division bench comprising Chief Justice Umar Ata Bandial and Justice Farrukh Irfan Khan had on Nov 7, 2013 dismissed several petitions against the Punjab government’s powers to conduct delimitation.
The detailed judgement also carried an additional note from Justice Khan justifying his earlier view on the matter in the order of the division bench endorsing powers of the Punjab government regarding delimitation.
“During the course of hearing of the larger bench, I realised that certain constitutional and legal aspects of the case had not been argued before the learned division bench, besides proper assistance was also not rendered,” Justice Khan stated in the note.
He said he tried to guard the division bench’s view and explored every possible avenue to seek endorsement of the earlier view. However, he said, he concluded that his earlier view being a member of the division bench could not be sustained in view of the constitutional and legal position, which emerged before the larger bench.
“I, therefore, feel that the view expressed by the larger bench must be yielded to in the larger interest of the community and for upholding the mandate of the Constitution,” the note concluded.
The judgement directed the ECP to perform its constitutional role without further ado and hold local government elections in Punjab forthwith. It remarked that the ECP needed not wait for legislative amendments to the Act in light of the judgement.
The bench noted that unavailability of updated national census was a serious challenge for the ECP. However, it observed: “We are confident that the ECP will steer through it with success, ensuring the elections to the local governments are organised and conducted honestly, justly, fairly and in accordance with law.”
The bench directed the provincial government to take necessary steps for carrying out amendments in the PLGA 2013 in light of the constitutional role and obligations of the ECP and as laid down in the judgement as soon as possible.
The bench also directed its office to arrange Urdu translation of the judgement to enhance accessibility and readership.