The Sindh High Court has observed that the concept of being elected after being selected is not an alien concept in our redesigned constitution via wisdom of legislature.
Issuing a detailed judgment on petitions that challenged the amendments to the local government law, which allow unelected individuals to contest elections for the posts of mayor and deputy mayor, a division bench, headed by Chief Justice Mohammad Shafi Siddiqui, observed that the law can only be struck down on the grounds of lack of legislative competence, being violative of fundamental rights preserved by the constitution and if it offends any article of the constitution. The court had earlier dismissed the petitions through a short order.
The SHC observed that it seems that the provisions similar to the one inserted under 18-B (amended Section impugned in the instant petition) are present in the constitution for the federal and provincial ministers who, if so appointed, are required to be elected within a span of six months.
It said that any Muslim member of the National Assembly can be elected as prime minister of the country; hence, even a Muslim individual from reserved seats (who are not directly elected) can theoretically be prime minister of Pakistan. “Similarly the chief ministers could be any one from amongst the members of the provincial assembly; hence, any individual from the reserved seats including the woman and minority can theoretically be elected as chief minister.”
The court also observed that analysis of the counsel for the petitioners seems to have challenged the wisdom of the legislature and this attempt could only succeed if an amendment falls beyond the basic frame of the constitution, not otherwise.
It said the amendment impugned cannot be attacked on the ground of lack of legislative competence, as it has such competence, except if the legislative product encroaches upon and/or infringes fundamental rights of the citizens.
The bench observed that it does not see if any case of legislative incompetence is made out, nor could it be regarded as a violation of any of the fundamental rights.
It noted the contention raised with regard to retrospective application of the impugned amendment; however, the amendment took place on May 11, 2023 whereas the election schedule for the post of “Mayor, Deputy Mayor, Chairman/Vice Chairman” was notified on May 24, 2023 i.e. after the impugned amendment, followed by the elections conducted in June 2023; therefore, such elections of the mayor/deputy mayor etc. on the ground of retrospectivity cannot at all be disturbed.
Regarding questions raised by the petitioners that the individuals desirous to be elected on the subject posts must first become part of the union councils and should face the rigorous election process, the court observed that the same is of no help to the petitioners as the legislation by way of the impugned amendment has not demonstrated it as unconstitutional.
The SHC said the incumbency advantage that is being impugned only comes into effect after all similarly placed candidates do or are enabled to contest an indirect election to the post of mayor, and only because of winning the indirect election to such post does the incumbency advantage accrue to any candidate or is earned by the same. It observed that such advantage is earned by the winning candidate, who is consequently placed dissimilar to other candidates in the subsequent direct election. The court observed that if the petitions are accepted, there would be no concept of re-election and all incumbent office holders would be barred from contesting elections.
The SHC observed that the federal and provincial governments are constitutional constructs whereby they are governed by the provisions set out under the constitution, whereas the local government is a statutory construct which operates under the provincial government; hence, since the local government system is a statutory construct and operates on the basis of enactments by the provincial government, the same can be statutorily amended, which is well within the legislative competence of the provincial government.
The court observed that it does not find the subject amendment, as impugned in these petitions, to be ultra vires to the constitution and consequently the petitions merit no consideration and the same were accordingly dismissed along with pending applications.
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