LAHORE: All people can't be treated alike: LHC- Verdict on Nazims' plea
By Mahmood Zaman
LAHORE, April 3: The Lahore High Court has held that Pakistani society is based on different classes and all the people cannot be treated alike and equal before the law in all circumstances.
Even Article 25 of the Constitution, which ordains that all citizens are equal before law, permits discrimination on the basis of reasonable classification among different sections of society because of social intelligent differenences. This means that only the people, positioned alike in social status, are to be treated equally on privileges and obligations.
This interpretation of the Constitution has been made in a judgment announced on March 24 by a division bench of the Lahore High Court which dismissed 85 petitions submitted by union councils Nazims and Naib Nazims against the legal provision on their internal recall (no-confidence) motions.
The Nazims and Naib Nazims argued that they were voted out by union council members which was unjustified both legally and politically because they were elected directly by the people and the electorate alone was empowered to remove them from their offices.
The petitioners challenged the vires of sections 85 and 92 of the Punjab Local Government Ordinance, 2001, which provides for the internal recall by members of a union council. Their contention was that the two provision of the ordinance were in conflict with article 25 of the Constitution which enshrined equality before law without any discrimination.
Justices M. Javed Buttar and Muzammal Khan said in the judgment that Article 25 of the Constitution clearly visualizes that discrimination has to be within the same class of the people created by law.
A person falling in one class cannot agitate that he or she has been discriminated merely because the people in the other class have been treated differently. As such, Article 25 of the Constitution does not provide that all the citizens, no matter which section they belong to, are covered and protected irrespective of circumstances.
The bench based its judgment on different Supreme Court decisions, particularly on cases reported in 1991 SCMR 1041 and PLD 1993 SC 341 and 1997 SCMR 641, in holding that equal protection of law cannot be extended to every citizen in all circumstances and that the Supreme Court decisions permitted reasonable classifications of the people.
In this background, the judgment said, different laws could be enacted for different genders, social status and financial standing.
The judgment said that the Punjab Local Government Ordinance 2001 created two classes of elected people who were placed further in four different groups on the basis of their obligations and liabilities.
Members of a union council, including Nazim and Naib Nazim, were in one category and members of district and tehsil councils were grouped in another category.
They were elected in different modes of election. The ordinance rightly provided different methods for their removal from the office. In no way these different modes of removing them from the office were discriminatory because they were not within the same classified group.
According to the judgment, different ways of internal recall motions were not violative of the Constitution. The court cited the examples of elections and recall of representatives in countries like the US and the Great Britain. It said everywhere in the world the removal of an elected representative had been given to the elected parliament and not to the electorate.
The judgment also cited earlier local government laws and rules under them in 1959, 1960, 1963, 1975 and 1979 and said that the recall motion in all these laws was almost identical and the provisions of sections 89 and 92 in the latest enactment could not be declared as discriminatory.
As for the request of the petitioners that the two provisions of the ordinance should be struck down, the judgment said that the courts were functioning to give a fact to the laws and go after only those pieces of legislation which were enacted in clear contravention of the constitution.
The judgment said even under general democratic principles, an elected representative had no right to remain in office after losing confidence of a representative body.
The petitioners had got elected, entered their offices and performed their duties upon acceptance of the ordinance in all its good or bad things. They could not now be permitted to turn back and say that the ordinance was not acceptable only when they had been voted out of office.
