The Sindh High Court (SHC) ruled that the result of the city’s mayoral election would be subject to the outcome of the petition that challenges the local government law’s amendments that allow unelected persons to contest elections for the posts of mayor and deputy mayor.
Issuing order on Jamaat-e-Islami (JI) Karachi Emir Hafiz Naeem Ur Rehman’s plea seeking a stay order on the election for the mayor and deputy mayor posts, an SHC division bench headed by Justice Yousuf Ali Sayeed said that the operation of the LG Act 2023 and its amendments could not be suspended as an interim measure.
The court said that no case for interim relief had been made out, but the result of the election would be subject to the final outcome of the petition.The petitioner had elicited interim relief, seeking suspension of the Election Commission of Pakistan’s (ECP) notification for the election for the mayor and deputy mayor posts.The request had been made on the grounds that the notification was ultra vires the 1973 Constitution, without lawful authority, and of no legal effect.
He had sought to restrain the ECP and the Karachi Metropolitan Corporation from taking any action pursuant to Section 18-B of the Amendment Act.His counsel pointed out that Section 18 of the Act made the membership of the corporation/council a sine qua non (essential condition) vis-à-vis the eligibility of a person seeking to be elected to the post of chairman or mayor.He said that prior to the 2023 Act, it had been necessary that a person goes through the rigours of a direct electoral process to become eligible to contest the election for either of those posts.He also said that through the insertion of Section 18-B in the 2023 Act, the provincial government had effectively dispensed with the requirement so as to allow any person to be elected.
He argued that Section 3 of the 2023 Act thus offended the fundamental precept of representative democracy at LG level, premised on the vesting of executive authority with persons who are elected representatives of the people, as enshrined in Article 140-A of the constitution.The Sindh advocate general raised objections as to the petitioner’s locus standi (right to bring legal action to court) and the maintainability of the petition.He said the petitioner belongs to a political party whose elected representatives in the provincial assembly had voted in favour of the 2023 Act, which, according to him, had been passed unanimously.He pointed out that the 2023 Act had been passed by the PA on May 11, and had received the assent of the governor the same day; then it had been published in the Sindh Government Gazette on May 12.
He said the petition had, however, been held back as a tactical measure so as to be presented on June 7, only a week or so prior to the day of the election.He argued that it was within the legislative competence of the PA to promulgate the 2023 Act, and that its provisions did not offend any constitutional provision.The operation of the Act, as amended, could not be suspended pending the final determination of the question of constitutionality, and the same ought to be given effect until then, he said.Rehman, who was elected North Nazimabad UC-8 chairman, said in his petition that the impugned amendment was promulgated and had deemed to have taken force on December 31, 2021.
