KARACHI, Feb 11: Nazims and deputy nazims cannot prematurely be removed except by internal or external recall, resignation, suspension or death, the counsel for the four relieved local government heads of bifurcated districts argued before a Sindh High Court division bench on Friday.
Section 186 (2) of the Sindh Local Government Ordinance, 2001, Advocate Rashed A. Razvi maintained, was meant to cover the transitional period in areas where local government had not validly been constituted owing to a natural calamity or conditions beyond human control.
It could not be pressed into service for removal of nazims and deputy nazims in districts where local government was functioning under the law. No transitional provision could be invoked after the cut-off date of June 30, 2002.
Under Section 159 of the SLGO, the counsel said, the nazim was to continue to hold office provisionally even if he had lost the confidence of the majority. In the instant case, one-third of the province's population had been disenfranchised and four nazims had been replaced by government functionaries.
He produced a recent SHC judgment holding that no public servant could be appointed in place of nazims and district nazims. The bench, which consisted of Justices Sarmad Jalal Osmany and Zia Pervez, pointed out that the present case did not involve loss of confidence or of majority.
It was an instance of the loss of the very constituency they were elected to represent and also of coming into being of new constituencies and electoral colleges. The bench wanted to know the import of the words 'vacancy', 'falling vacant' and 'appointment of any person' occurring in various provisions of the SLGO.
The proceedings were adjourned to Feb 14 for further arguments by Mr Razvi and a final rejoinder by Advocate-General Anwar Mansoor Khan. He was assisted by advocates Abu Bakr Zardari and Rana Ikramullah. Additional Advocate-General M. Ahmed Pirzada and Assistant Advocate-General Qasim Mir Jat represented the provincial government in the AG's absence.
Relying on the provisions of the SLGO and superior court judgements, Mr Razvi said the removal of nazims and their replacement by district coordination officers was against the spirit and object of the law.
In one case, the court struck down a rule stipulating replacement of union council chief facing a no-confidence move by a government nominee. Ignorance could not be attributed to the legislature and it could have provided for the contingency created by the bifurcation of districts while guaranteeing a secure term for nazims and deputy nazims.
The bench observed that the whole SLGO proceeded on the assumption that the districts constituted under the Land Revenue Act were to have district governments, headed by nazims and deputy nazims.
It referred to the AG's argument that the popularly elected union councils in every district have the right to elect the district nazim. The SLGO provision declaring that any re demarcation of union councils was to take effect at the time of next election could not be applied to districts. Re demarcation of UCs was done at their own behest while the electoral districts were brought into existence by Section 7 of the SLGO.
The counsel also referred to Article 17 of the Constitution and 1993 Supreme Court judgment in the Nawaz Sharif case not to assert that political parties had a right to contest the local government polls but to argue that it was a fundamental right of citizens to form their local governments and have them in office till the completion of their tenure.
Asked by the bench to give instance of an elected authority staying on in office after the dissolution of the constituency voting it in, Mr Razvi said the members elected from the western Pakistan formed the constituent assembly for Pakistan after the country's break-up.
That, the bench observed, happened under martial law and the petitioners would not like imposition of martial law in their districts. It also enquired whether security of term was guaranteed only to the office of the nazim or the district government as such.
Citing the Supreme Court judgment in Khwaja Hasaan's case, Advocate Razvi requested the bench to construe the law strictly in accordance with the letter and spirit of the 2001 ordinance.
