P L D 1999 LAHORE 115
Per Amir Alam Khan, J.
(a) Constitution of Pakistan (1973)
Section 12-B lays down that the members of Panchayat shall be nominated by the Government and that the Sarpunches of all the ‘Panchayats in the area of Union Councils shall be ex officio members of the Union Councils of that area and by way of proviso added to subsection (2), section 12 the Sarpunches of the Union Council are also to be nominated by the Government. The complexion of Union Council which oozes out of these provisions is that the Chairman of all the Panchayats in the area of the Union Council shall become the member of the Panchayats in the area of the Union Council shall become the member of the Union Council and since the Chairman of the Panchayat is the nominated member, therefore, the whole Union Councils of an area shall be composed of nominated members. As far the Chariman of the said Union Council is concerned it is ordained that the member of Zila Council elected from Union Council shall be the ex officio Chairman of the Union Council. In short the whole of Panchayat and the Union Council shall be manned by nominated members and then the Chairman of the Union Council. Section 49-A has gone a step further wherein it is provided that Panchayat may act as advisory body to the Union Council and in which it is located and perform such other functions as may be assigned to it by the Government. This composition and complexion of Union Council has been challenged and in that first reference may be made to Article 2A of the Constitution wherein it is agreed by the Founding Fathers of the Nation that the State shall exercise its power and authority through chosen representatives of the people and as the State includes Union Council, therefore, this will and determination of the Founding Fathers cannot be negated by introduction a patch of nominations in the election laws. It was agitated by the learned counsel for the petitioners and rightly so that nomination is a word unknown in the realm of elections and cannot be countenanced in these progressive times. The fate of the people cannot be subjected to the choice of the Deputy Commissioner as the choice of people through election is norm which has been recognised by all the civilised societies. Again the nomination allowed to be made by the Deputy Commissioner of the area would but be that of the Government in power, thus, negating the commands of Constitution contained in Article 32 that State shall encourage local Government institutions composed of elected representatives of the area and in such institutions special representation will be given to peasants, workers and women. Now that principles of democracy has finally triumph in this country and people have heaved a sigh of relief from the rigours of Martial Law, the amending Ordinance which has introduced Panchayat and Constitution.[p. 122, 123]A, B.Similarly, powers of section 168 on frame by laws on the direction of the Government are to be exercised and both these powers can only be exercised by elected representatives and not by nominated member of the Panchayat or Union Council. Obviously, the amending Ordinance is violative of Articles (2) ibid specifically provides that any law which is found to be inconsistent with the fundamental rights guaranted under Chapter 1 of Part II of the Constitution shall to such inconsistency be void and that State shall not make any law which takes away or abridges the right so conferred in any law made in contravention of this clause which to the extent of such contravention be void.[p. 124]D.
As far the argument that is the right of the citizen to form any association, it would be noted that it is subject to reasonable restrictions imposed by law in the interest of sovereignty and integrity of Pakistan, public order or morality. It is common knowledge that feuds and bloody clashes takes place during the elections and it is normally alleged that it is because of affiliation with different political parties. Again it is matter of record that murders have taken place on the basic of political rivalry. Since the elections are being held at grass roots which are primarily meant for the good of common man and his problem, therefore, it is advisable that political affiliation should be avoided so that chosen representative should not be partisan and be able to devote himself to the chosen representative should not be partism and be able to devote himself to the problems of common man. Subsection (3) of section 13 of Ordinance No. VI of 1979 would also be relevant in this context and the provision thereof can further be supported from sub-clause (g) of section 29 (ibid). Since the whole effort of holding elections on on-party basis seems to avoid any ugly situation of law and order as also morality, therefore, the elections on non-party basis are held to be intra vires of the Constitution.[p. 125]F.
For the reasons stated above, these petition are partially allowed in that proviso attached to subsection (2) of section 12, section 12-B and section 49-A alongwith section 6-A, section 9-A and section 3(xxvi) are declared to be ultra vires of the Constitution, therefore, the same are struck down.[p. 127]G.
It is, thus, obvious from the combined reading of two Articles noted above that every citizen is to be treated equally and this is inalienable right, therefore, the urban population cannot be treated differently than rural population nor can placed at a higher footing than the rural population, hence the right of vote, which has been snatched from the rural population of this country is obviously discriminatory, therefore, cannot be sustained. Reference may advantageously be made to the case of Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1998 SC 416. The argument that the Union Council was redundant in the rural area and that by removal thereof, the rural population has been brought at par with the urban population suffers from in-built fallacy. If a Union Council was surplus the legislative measure should have been to extinguish the same rather than to keep it with a different composition and that too, of nominated members which is hightly undemocratic, therefore, the provisions of subsection (2) of section 12 as also section 12-B of the Ordinance are also struck down on the touchstone of fundamental rights as contained in Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. As far the plea that the nomination to the Local Council is primarily a political question and cannot be agitated in a Court of law, the answer can be found in the rule of law laid down in Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1998 SC 416. Section 49-A which has been added to the Ordinance No. VI of 1979 speaks of functions of the Panchyats and it has been so provided that Panchayat may act as advisory body to the Union Council in which it is located and perform such other functions as may be assigned to it by Government. Now the Chairman of the Panchayat located in the area of the Union Council is to become the member of the Union Council from the area of Union Council. In nutshell the nominated members of Panchayat are to act as advisory body of the nominated members of the Union Council and for such other functions as may be assigned to it by the Government. The discretion and authority as retained by the Government to assign them any function speaks of arbitrary power with the Government which cannot be accepted in the matters of elected representatives. It is, thus, obvious that a Panchayat shall be taking dictation wholly from the Government which is absolutely illegal.[p. 124, 125]E.