SHC dismisses petitions challenging amended local government law

The Sindh High Court (SHC) on Monday dismissed the petitions of various union council chairmen and vice-chairmen challenging an amendment in the local bodies’ law.

According to the amendment, the mayor, the deputy mayor and any of the chairmen or vice-chairmen can be removed from office by a vote of no-confidence through a simple majority.

Abdul Rauf Nizamani and other petitioners had sought to perpetuate their tenure of elected office, pursuant to the Sindh Local Government Act (SLGA) despite having lost the confidence of the majority of their respective houses.

They also impugned the amendment in Section 27 of the Act vide SLGA (Amendment) Act 2019, according to which the mayor, the deputy mayor and any of the chairmen or vice-chairmen can be removed from office by a vote of no-confidence passed by the virtue of a simple majority, in substitution of the earlier stipulation of a two-thirds majority.

The petitioners’ counsel said the impugned amendment was colourful legislation, ultra vires of Article 4 and Article 25 of the constitution and contrary to the vested rights, hence liable to be struck down.

He said the impugned notifications were incompetently issued in contravention of the law, and thus may be quashed. He added that even if it was demonstrated that the petitioners had lost the confidence of the majority of the members of the house, they ought not to be removed from office.

Sindh additional advocate general said the petitioners’ sole objective was to perpetuate the usurpation of an elected office, for which they had admittedly lost the mandate. He said the impugned amendment was in consonance with the general principles of the law and the constitution, and there was no question of any retrospective effect or mala fide intention whatsoever.

He added that the specific issue had been adjudicated by an earlier division bench of the court, and it was held that there was no infirmity in respect hereof. The SHC’s division bench headed by Justice Mohammad Ali Mazhar said the petitioners’ counsel remained at a loss to demonstrate as to how violation of Article 4 and Article 25 of the constitution was manifest.

He said that it has already been established that a person has no vested right to remain at the helm of a house after having lost the confidence thereof, so there is no demonstrable infringement on any right whatsoever.

He added that the impugned amendment has province-wide application and does not target any specific person, so there appears to be no discrimination demonstrated whatsoever. The judge said that no mala fide intention has been demonstrated before the court as far as the legislation is concerned.

He also said that it is well-settled law that if a statute was not ex facie repugnant to the fundamental rights under the constitution but was capable of being so administered, it could not be struck down unless the party challenging it could prove that it had actually been so administered.

He added that in the present circumstances the petitioners have not been able to demonstrate any repugnancy, as per the fundamental rights enshrined in the constitution.

Regarding the petitioners’ contention that a no-confidence motion process was required to be conducted by the Election Commission of Pakistan (ECP), the judge said the petitioners’ counsel was especially asked if the ECP had conducted the in-house proceedings of no-confidence with respect to a prime minister, chief minister or speaker, and the question was answered in the negative.

The court said that no case was made out to suggest that a vote of no-confidence, in respect of the elected offices under scrutiny, was required to be conducted by the ECP. The bench also said the writ jurisdiction of the court is intended primarily to safeguard the fundamental rights enshrined in the constitution.

The judge said the petitioners’ counsel has been unable to demonstrate the infringement of any fundamental right of the petitioners that would merit the court exercising its jurisdiction.

On the contrary, he added, the perpetuation of the holding of an elected office, of the nature under scrutiny despite having lost the confidence of the house, is considered to be contrary to the scheme of law and the interests of justice.

The bench said the petitioners have been unable to make out a case for intervention of the court in exercising its constitutional jurisdiction and as a consequence thereof the present petitions including all pending applications are hereby dismissed.