LG councils: Independents can join political parties, rules SHC
Court strikes down rule barring independent winners from joining political parties
Court strikes down rule barring independent winners from joining political parties. PHOTO: AFP
KARACHI:
The Sindh High Court (SHC) struck down on Tuesday Rule 42(A) of the Sindh Local Councils (Elections) Rules, 2015 that barred winning independent candidates from joining political parties beyond seven days of their victory.
A division bench ruled Rule, 42(A) of the Sindh Local Councils (Elections) Rules, 2015, to be of no legal effect in view of the order passed on April 15, 2016 by the Supreme Court (in Civil Appeals No. 760 to 786 of 2016) as well as ultra vires its parent statute, Sindh Local Government Act, 2013 and the Constitution.
The bench also declared that the notification dated September 1, 2015 whereby the impugned rule was introduced, is declared to be coram non-judice to the extent of the impugned rule 42(A).
Model legislation: LG councils functioning without prescribed bylaws
The ruling came on a petition filed by a group of candidates, who had independently contested the local government elections for the Shikarpur district council and won it. They were disallowed by the Election Commission of Pakistan (ECP) from joining any political party for the allocation of reserved seats for women, youth, labourer/peasant and non-Muslims.
They had approached the court against the ECP’s May 4, 2016 notification that announced the schedule to calculate the allocation of reserved seats for the political parties in the local councils.
While hearing two similar petitions, the bench had suspended operation of the ECP notification till a decision on its legality. On May 4, the ECP had announced the schedule for the election to fill the indirect seats in various local councils, as required under Section 18-A of the Sindh Local Government Act, 2013.
The petitioners’ lawyer had argued that the ECP had clearly notified that only political parties were eligible for the allotment of reserved seats and such allocation would disenfranchise the independent candidates and their voters.
Therefore, the petitioners later informed the ECP that they are going to join Pakistan Muslim League - Functional. However, the ECP disallowed them from doing so, stating that the elected candidates could join any political party within seven days of the publication of their names in the official gazette, in light of Rule 42(A) of Sindh Local Government (Election) Rules, 2015.
The judges observed that it is an admitted position that the petitioners had sent several written intimations to the relevant returning officers and district returning officers appointed by the ECP that they have subsequently joined the political party specified therein.
They noted that these were intimations after joining, and not applications seeking permission to join, adding that in response to these written intimations the petitioners were advised in writing by these officers that the “ECP has not still announced any date for a political party” and “whenever instructions are received from the ECP then you submit such applications according to the instructions/rules.”
“It is, therefore, clear that the petitioners’ intimations for joining the political party have not been rejected till date for want of letter/certificate in their favour from the leader of the political party,” they ruled, adding that the ECP will be at liberty to decide the case of the petitioners on this particular ground, if the law so permits.”
Case history
The petitioners had argued that under section 33 of the local government act, an independent candidate can join any political party at any time. Therefore, rule 42(A), being a subordinate law, was not binding on them.
Published in The Express Tribune, June 1st, 2016.
The Sindh High Court (SHC) struck down on Tuesday Rule 42(A) of the Sindh Local Councils (Elections) Rules, 2015 that barred winning independent candidates from joining political parties beyond seven days of their victory.
A division bench ruled Rule, 42(A) of the Sindh Local Councils (Elections) Rules, 2015, to be of no legal effect in view of the order passed on April 15, 2016 by the Supreme Court (in Civil Appeals No. 760 to 786 of 2016) as well as ultra vires its parent statute, Sindh Local Government Act, 2013 and the Constitution.
The bench also declared that the notification dated September 1, 2015 whereby the impugned rule was introduced, is declared to be coram non-judice to the extent of the impugned rule 42(A).
Model legislation: LG councils functioning without prescribed bylaws
The ruling came on a petition filed by a group of candidates, who had independently contested the local government elections for the Shikarpur district council and won it. They were disallowed by the Election Commission of Pakistan (ECP) from joining any political party for the allocation of reserved seats for women, youth, labourer/peasant and non-Muslims.
They had approached the court against the ECP’s May 4, 2016 notification that announced the schedule to calculate the allocation of reserved seats for the political parties in the local councils.
While hearing two similar petitions, the bench had suspended operation of the ECP notification till a decision on its legality. On May 4, the ECP had announced the schedule for the election to fill the indirect seats in various local councils, as required under Section 18-A of the Sindh Local Government Act, 2013.
The petitioners’ lawyer had argued that the ECP had clearly notified that only political parties were eligible for the allotment of reserved seats and such allocation would disenfranchise the independent candidates and their voters.
Therefore, the petitioners later informed the ECP that they are going to join Pakistan Muslim League - Functional. However, the ECP disallowed them from doing so, stating that the elected candidates could join any political party within seven days of the publication of their names in the official gazette, in light of Rule 42(A) of Sindh Local Government (Election) Rules, 2015.
The judges observed that it is an admitted position that the petitioners had sent several written intimations to the relevant returning officers and district returning officers appointed by the ECP that they have subsequently joined the political party specified therein.
They noted that these were intimations after joining, and not applications seeking permission to join, adding that in response to these written intimations the petitioners were advised in writing by these officers that the “ECP has not still announced any date for a political party” and “whenever instructions are received from the ECP then you submit such applications according to the instructions/rules.”
“It is, therefore, clear that the petitioners’ intimations for joining the political party have not been rejected till date for want of letter/certificate in their favour from the leader of the political party,” they ruled, adding that the ECP will be at liberty to decide the case of the petitioners on this particular ground, if the law so permits.”
Case history
The petitioners had argued that under section 33 of the local government act, an independent candidate can join any political party at any time. Therefore, rule 42(A), being a subordinate law, was not binding on them.
Published in The Express Tribune, June 1st, 2016.