Detailed judgment on LG polls: State can’t interfere in people’s beliefs, says SC

Critical of Sindh govt’s move to compel panels of nine to contest polls.

ISLAMABAD:

Issuing its 65-page detailed judgment on delimitation for local government (LG) polls, the Supreme Court on Tuesday observed that it is the duty of the state not to interfere with the religious beliefs and ideologies of individuals.

“The freedom to profess religion and to manage religious institutions (Article 10A), encases the right to both profess a certain religion and not to do so. It also places a duty on the state not to interfere with the religious beliefs and ideologies of individuals,” said the judgment by the apex court’s three-judge bench, headed by Chief Justice of Pakistan Tassaduq Hussain Jillani.

The apex court in its short order on March 20 had dismissed the petitions filed by the Sindh government against the Sindh High Court’s decision and directed the federal government to empower the Election Commission of Pakistan (ECP) to carry out the delimitation of constituencies for local governments.

The court had also directed the Sindh government to make corresponding amendments in the Sindh Local Government Act, 2013.

The judgment said Article 19 (freedom of speech and expression) encased the right of an individual to express his views and opinions and engage in dialogue without fear of misplaced sanctions and state intervention, ‘but simultaneously the citizen possesses the right to remain silent’.

Making a distinction between ‘positive’ and ‘negative rights’ of citizens, the judgment explained that positive rights usually oblige action and negative rights usually oblige inaction.

“Many of the fundamental rights granted by our Constitution pertain to both positive and negative rights. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service.”

The judgment maintains that negative rights place a duty on the state not to interfere in certain areas where individuals have rights ‘and the right-holder can thereby exercise his right to act a certain way or not to act a certain way and can exercise his or her freedom of choice within the existing right’.

“The positive rights place a positive duty on the state and include social and economic rights, adding that the right to education (Article 25A), protection of person and property (Articles 9 and 24 respectively) and the promotion of social justice and eradication of social evils (Article 37).”

Referring to the Sindh Local Government Act, the judgment observed that to compel people to contest local government polls in panels of nine or not to contest at all was violative of Article 2A and hindered rights guaranteed under Article 17 and 25.

The judgment said the Constitution-makers for the first time had vested the power to hold local government’s elections with the ECP because the previous experiences of holding and conducting elections by the provincial governments were controversial.

The judgment said the need to carry out the delimitation exercise through a neutral body (the ECP) was imperative because there were instances when voting strength of a community, a minority or an ethnic group was diluted, during the process.

The judgment, however, made it clear that it is prospective and shall not affect the validity of the Balochistan’s LG polls.

Published in The Express Tribune, April 9^th, 2014.