ISLAMABAD: The Islamabad High Court (IHC) reserved its verdict in three separate petitions challenging the Islamabad Local Government Ordinance, 2021 and the Election Amendment Ordinance, 2022.
A single bench of Justice Mohsin Akhtar Kayani on Tuesday heard the petition moved by an association of over 1,300 officers and servants of the CDA who are citizens of Pakistan and hails from all the various federating units of this country, while the other petition was filed by Sardar Mehtab Ahmed Khan former chairman of a UC of Islamabad through his counsel Adil Aziz Qazi advocate.
During the hearing, an assistant attorney general Barrister Mumtaz appeared before the court and submitted all summaries related to the ordinance and adopted the stance that the ECP pressurised the governm-ent for local body elections in the federal capital.
He also said that the ECP was informed regarding the proposed amendment in the law.
The IHC bench observed that if the Parliament did not approve the ordinance within 120 days time period then how the ECP would work. The ECP lawyer stated that the state institutions were not cooperating with department in this regard and most of the representatives were found unavailable when they were summoned.
Petitioner’s lawyer UmerIjaz Gilani advocate argued that the legislation through the ordinance was not a good practice.
After hearing the arguments, the bench reserved its verdict which would be announced later. In this matter, the petitioner, Sardar Mehtab, moved the court through his counsel Adil Aziz Qazi advocate and cited President of Pakistan through his Secretary, Federation of Pakistan through Secretary Ministry of Law and Federation of Pakistan through Secretary Ministry of Information Broadcasting and National Heritage as respondents.
In his petition, he challenged the promulgation of Elections (Amendment) Ordinance, 2022 whereby, certain amendments have been made in to the existing Elections Act, 2017. He adopted that through the said ordinance, the respondents have tried to sneak amendments into the existing laws at the eleventh hour when only one day before promulgation of the ordinance, the Upper House of the Legislature was in session.
He added, “It appears that the respondents had already prepared the draft of the Ordinance and were waiting for the ongoing session to expire in order to avoid the due process of legislation.”
Petitioner’s counsel Adil Aziz informed the court that through the said Ordinance a new section namely, 181(A) has been inserted in the Act which provides that a member of Parliament, Provincial assembly, or Local government including member holding any other office under Constitution may visit public meetings in any area or constituency during election campaign.
The counsel submitted that the Constitutional Scheme of Pakistan calls for establishment of democratic values that need to be promoted in the country which include the Freedom of Association and Expression imbedded in the chapter of Fundamental Rights of the constitution.
He pointed that the Constitution of Pakistan clearly indicates that democracy is embedded in the principles of liberty and freedom of expression, and any restriction over the said fundamental rights have to be reasonably imposed by the Legislature while considering the integrity, security or defence of Pakistan, public order, decency or morality or in relation to contempt of court, commission or incitement to an offence as the sole reasons to such restrictions.
He argued, “The said ordinance has been promulgated without passing the necessary tests imposed under the constitution of Pakistan for legislation through the mode and manner of Ordinances.”
He also argued that the Promulgation of the Ordinance is based on malice and required conditions have not been met by the respondents. Petitioner’s counsel contended, “The issuance of Ordinance is going to hamper the right of freedom of association which is one of the fundamentals of a healthy democracy and to create an environment where people of the country are penalized for speaking their heart out, to express their opinion, to present facts before the general public, is against the democratic values given by not only the constitution of Pakistan but the world over.”
Therefore, he prayed before the court that the promulgation of the impugned Elections (Amendment) Ordinance, 2022 itself and the Ordinance be declared as ultra-vires to the entire scheme of Constitution of Islamic Republic of Pakistan 1973 and the fundamental rights of the people of Pakistan.
In the petition filed by CDA’s officers association through their counsel UmerIjaz Gilani, they cited federation of Pakistan through Secretary Ministry of Law, President of the Islamic Republic of Pakistan and Election Commission of Pakistan through its Secretary as respondents.
The petitioner assailed the vires of Islamabad Local Government Ordinance, 2021 promulgated by the President of Pakistan on 28 November, 2021. They adopted that this legislation, which has serious consequence for the provinces of Pakistan, should have been placed before and debated in the Senate of Pakistan and its implications both in terms of assets, finances and job prospects for the federating units should have been debated.
They added that not doing so violates the principle of federalism which is enshrined the Pakistani constitution. Besides, the legislation envisages a constitutional absurdity whereby, an entire tier of the federation would be elected to office upon the basis of a mere temporary law.
They maintained, “Besides, it falls short of the requirements of Article 140, since it cannot possibly provide tenure protection to the elected local government. It is patently in excess of the mandate of Article 89 of the Constitution which is limited to emergency legislation. Last but not the least, it is unconstitutional because it jeopardizes the vested service-related rights of the Petitioner’s members, which amounts to violation of the Articles 18 and 23.”
The petitioners’ counsel contended that through Section 184 of the Impugned Ordinance, the Islamabad Local Government Act, 2013, an enactment promulgated by the Parliament of Pakistan in pursuance of the directions of the Supreme Court, has been repealed.
Gilani argued that the Ordinance brings about major legislative overhauls of the electoral procedure regime related to local government in Islamabad. He added that among the major changes it brings about are: direct election of Mayor; a major reduction in the scope of the powers and responsibilities of the CDA and Chief Commissioner’s Office and transfer of their assets and employees to the Islamabad Municipal Corporation.
Therefore, he prayed before the court to declare that the impugned Ordinance is illegal, unconstitutional and of no legal effect and set aside the same.
He also requested to declare that an entire tier of the Federation of Pakistan which is required by Article 140A to be set up cannot be erected on the foundation of a mere temporary law; rather, it requires the enactment of a permanent law by the competent legislature.
Copyright Business Recorder, 2022