LAHORE - A Lahore High Court division bench on Thursday annulled section 18 of Punjab Local Government Act (PLGA) 2013 under which the provincial government had announced holding local governments elections on non-party basis.

Except Punjab, the other three provinces have already announced to hold the local government (LG) elections on party basis.

The bench headed by Chief Justice Umar Ata Bandial annulled announced a short order on the petitions moved by the Pakistan Peoples Party (PPP), Pakistan Tehreek-i-Insaf (PTI) and others challenging various sections of the Local Government Act 2013.

The order said that Section 18 of the PLGA was inconsistent with the fundamental rights of the citizens under Article 17(2) of the constitution, and the right of political parties to contest elections to the public posts in the local governments. The order added that it was also inconsistent with the Article 140-A (1).

“The denial of political identity of a candidate for a local government office by section 18 PLGA negates the obligation of the province under Article 140A of the constitution to devolve political authority and responsibility to elected representatives of local governments.” Significantly, it added, certain offices of local governments under the PLGA are not elected by adult franchise.

The bench also observed in the judgment that provincial assembly has authority to legislate on the subject of delimitation of local government constituencies. The duty of the ECP to hold LG elections does not include the process of constituencies’ delimitation and therefore no constitutional mandate is violated by such process, the bench said.

“The elected representatives of union councils, metropolitan corporations, municipal committees and municipal corporations constitute an electoral college for the post of chairman and vice chairman, mayor and deputy mayor, as the case may be, of such local governments. The participation of elected representatives in the said indirect election involves the exercise of a political choice. Such choice can be exercised fairly, prudently, and transparently if the electors are imbued with a defined political vision, principles and values,” the order added.

The bench observed in the order that the elected representatives having backing of political parties would make their choice without being swayed by influence and other considerations. It said to exercise political authority and to assume political responsibility as directed by Article 140-A (1), it was necessary for the elected representatives of local government to nurture political values and principles that guide their executive decision making.

“In making a choice of beneficiaries of their executive action and for fixing priorities in the enforcement of executive policy, the elected representatives of the local governments exercise judgments that draw on their political vision, values and principles. Without involving violation of any law or showing a leaning towards any party or its program, such evaluation draws upon the political mooring and roots of the elected representatives,” the bench further noted in the order.

The LHC order said the political party background of elected representatives provided and nourished such roots. All elected representatives of local governments exercise executive functions whereas executive authority of a LG institution was vested in and exercised by its chairman or mayor, as the case may be, the court observed. As such the remaining elected representatives of LGs would fall outside Article 260 and may claim rights under Article 17(2), it said.

The bench observed that elected representatives of the local governments are not excluded from the definition of service of Pakistan as under Article 260 didn’t mean that the candidates of political parties are barred from contesting elections for Local Government posts.

“At best, an elected representative of local government and not a candidate for such office is deprived of the right under Article 17(2). There is no constitutional bar on a candidate of a political party from claiming a right under Article 17(2) to contest a LG election,” the bench noted further.

Relaying on a judgment titled Nawaz Sharif vs President of Pakistan of 1993, the LHC bench observed equally where a political party contests the election successfully, it had a fundamental right to form government provided it enjoys the requisite majority. As the third tier of government in the state, the LGs perform valuable public functions and exercise power to impose taxes; these institutions were accountable to the citizens of the province who are their electors under adult franchise, the LHC order said, adding the fundamental right of political parties to contest election extended equally to all tiers of government, including local governments.

Citing another judgment titled Banzir Bhutto vs Federation of Pakistan, the two-member bench observes the Article 140A was inserted by the Constitution (Eighteenth Amendment) Act, 2010. “The significant feature of Article 140A is its command to devolve political, administrative and financial responsibility and authority to the elected representatives of the LGs,” it said, adding, this necessarily involves the application of their political principles and values.

It said the expression of such principles and values by citizens of the country has been guaranteed under Article 17(2). The citizen’s right to form or be a member of a political party extends to the party’s right to contest and participate in elections.

“We conclude that the Provincial Assembly of Punjab has lawful authority to legislate on the subject of delimitation of local government constituencies. The duty of the ECP to hold elections to LGs does not include the process of delimitation of constituencies and therefore no constitutional mandate is violated by such process being carried out by the provincial government,” the bench observed.

In reaction, Punjab Minister for Law and Local Government Rana Sanaullah Khan said the government of Punjab will not move appeal against the LHC order for party-based LG elections in the province.

Talking to mediamen, he said the government would abide by the court order and do what has been asked by the court.