- Chapter – XVI) Qualifications and Term of Office of Candidates
- 61. Qualifications and disqualifications.–
- 62. Defection from a Political Party or Electoral Group.–
- 63. Effect of being found to be disqualified to be a candidate, Head of the local government, Deputy Mayor, Vice Chairperson, Speaker, or a Councillor.–
- 64. Bar against double membership.–
- 65. Term of office of the Council, Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or a Councillor.–
- 66. First Meeting and Oath of office.–
- 67. Effect of failure to take oath.–
- 68. Resignation by a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor.–
- 69. Fresh elections in case of casual vacancy in the office of a Speaker.–
- 70. Filling up of casual vacancies of Head, Deputy Mayor, Vice Chairperson and Councillors.–
- 71. Power of the Chief Minister to appoint an administrator.–
Chapter – XVI) Qualifications and Term of Office of Candidates #
61. Qualifications and disqualifications.– #
(1) A person shall be eligible to be a candidate for the office of a Head of a local government, Deputy Mayor, Vice Chairperson, Speaker, or a Councillor if:
(a) his name appears for the time being in the electoral roll of the electoral unit from where he is a candidate; and
(b) he, on the last day fixed for the filing of nomination papers for that election, is not less than twenty one years of age in case of a Councillor, and not less than twenty five years of age in case of a Head or a Deputy Mayor or Vice Chairperson or a Speaker:
provided that the age for a candidate for the seat reserved for Youth shall not be less than eighteen years and more than thirty two years.
(2) Without any prejudice to the provisions of subsection (1), no person shall be eligible to be a candidate or to hold the office of a Head of a local government, Deputy Mayor, Vice Chairperson, Speaker, or a Councillor, if:
(a) he is not eligible or becomes ineligible to be enrolled as a voter under the Elections Act;
(b) he has been convicted by a Court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force unless a period of five years has elapsed;
(c) he is under contract for work to be done or goods to be supplied to that local government or has otherwise any pecuniary interest in its affairs;
(d) he is in or enters into the service of Pakistan, or any statutory body or other body which is set up, or owned or controlled by the Federal Government or Government, or a local government in Pakistan, or in which the Government or a local government has controlling share or interest or he is or becomes a salaried official of a public or statutory corporation;
(e) he holds an office of profit in the service of Pakistan other than an office which is not a whole-time office remunerated either by salary or by fee, or the office of Lumbardar, whether called by this or any other title, or the office of Qaumi Razakar;
(f) he has been dismissed, discharged or compulsorily retired from the service of Pakistan, or the service of a local government or a public or statutory corporation on the charge of misconduct or a corrupt practice unless a period of three years has elapsed;
(g) he has obtained a loan for an amount of ten hundred thousand rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which stands unpaid for more than one year from the due date, or has had such loan written off unlawfully;
(h) he, his spouse or any of his dependents has not paid any tax, fee or any other charge payable to the Government or a local government, or any amount exceeding ten thousand rupees due upon him, his spouse or any of his dependent for the use of any service such as Pakistan Telecommunication Company Limited, electricity, gas or water for over six months; and
(i) he is declared to have defected his Political Party or, as the case may be, the Electoral Group under this Act.
(3) Where a person contesting an election to any office in the local government claims to be a Muslim, he shall submit to the Returning Officer a declaration given in the Third Schedule along with his nomination papers for the election.
provided that a person contesting election to the Head of Metropolitan Corporation and District Council shall submit declaration of assets and liabilities alongwith his nomination papers.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 27 | 109 | 61 | 70 | 61 |
62. Defection from a Political Party or Electoral Group.– #
(1) The Head of a Political Party or an Electoral Group may, after giving him an opportunity to show cause, declare a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or a Councillor to have defected his Political Party or, as the case may be, the Electoral Group who, after having been elected on its list:
(a) joins another Political Party or an Electoral Group; or
(b) votes or abstains from voting in the Council contrary to any direction of the Political Party or, as the case may be, Electoral Group in relation to the election of the Speaker, or a vote for removal of the Head of the local government, Deputy Mayor, Vice Chairperson, or a Speaker.
(2) After having declared a Councillor to have defected, the Head of the Political Party or, as the case may be, Electoral Group shall forthwith forward a copy of the declaration to the Election Commission.
(3) Where the declaration is confirmed by the Election Commission after due notice and inquiry, the Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor referred to in subsection (1) shall cease to hold office.
Explanation: For the purpose of this section, the Head of a Political Party or Electoral Group shall mean any person by whatever name called, declared as such by the Political Party or, as the case may be, Electoral Group.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| – | 110 | 62 | 71 | 62 |
Comments
The august Supreme Court of Pakistan in the judgment reported as 2019 SCMR 382 in the matter of “Nasir Mehmood v. Umar Sajid” deliberated upon the matter that whether conviction on four counts and a sentence of 1 year and 6 months on each count is to be seen cumulatively or in the perspective of being served consecutively in the context of section 27(2)(i) of the Punjab Local Government Act, 2013 read with Article 63(1)(h) of the Constitution while the sentences have been suspended by the High Court and the question was whether the candidate can contest the election while the final verdict in his case is awaited. The court held in paragraphs 10 & 13 of the judgment that:
“The benefit of running of the sentences concurrently is only to the extent of the period of incarceration in jail and the same would have no effect on the sentences awarded to a person on different counts which have to be read cumulatively for the purposes of disqualification envisaged by Article 63(1)(h) and section 27(2)(i).”
13. As far as the second argument of the appellant is concerned, we find that the suspension of the sentence awarded to the appellant would have no consequence on the conviction of the appellant which is complete as soon as the person charged has been found guilty by a Court of competent jurisdiction. As noted above, it is the conviction of the accused which is relevant in the context of Article 63(1)(h) of the Constitution and section 27(2)(i) of the PLGA. The suspension of sentence would have no consequence on the conviction of the appellants for the purposes of being qualified to contest either the local bodies elections or the elections for the Legislative Assemblies. Unless the conviction is specifically suspended by the Appellate Court by assigning cogent reasons therefor, or the Appeal of the Appellant is ultimately allowed and his conviction as well as sentence are set aside by the Appellate Court, the conviction of the Appellant would continue to hold the field and the disqualification incurred by him, by reason of this conviction, shall remain intact.”
The Lahore High Court in the judgment reported as PLD 2018 Lahore 46in the matter of “Malik Farzand Ali v. Asad Ali” held that incorrect mentioning of assets and liabilities neither made nomination paper of the candidate invalid nor disqualified the candidate. In the matter of “Shahzad Ali Khan v. Election Commission of Pakistan”, disqualification of the respondent was sought from being the Member and Chairman of Municipal Committee while asserting that a decree regarding loan taken by the respondent duly stands against him which has not been declared by him while filing the nomination papers. The respondent filed nomination papers alongwith others for contesting the seat of Councillor, Municipal Committee Tehsil Daska District Sialkot. He was declared as the Returned Candidate. Then he contested for the seat of Chairman, Municipal Committee and was elected so. The petitioner was a voter of the Halqa. After declaring the assets in Annexure A, the respondent has mentioned regarding his liability while submitting that there is a house mortgaged with the National Bank, Sialkot and the amount in this regard is yet to be paid, although he has not given details of the loan. The Hon’ble Court in the judgment reported as 2017 MLD 193 observed that:
“Contention of learned counsel for the petitioner that a decree has been passed against the respondent which has not been mentioned in the column of liabilities by him is concerned suffice it to say that the respondent has challenged the validity of the decree passed against him by filing R.F.A. No.916/2016 which is still pending decision. It is well-settled proposition of law that an appeal is continuation of the proceedings in the suit, therefore, the decree passed by the banking court being under-challenge cannot be said to be the final decree against the respondent. The decision in appeal may come in favour of or against the respondent. If the respondent is disqualified on the basis of the said decree but the decree awarded against him is set aside at a later stage, there will be no compensation available for the respondent for the intervening period when he is out of the said offices. Even otherwise, clause (j) regarding the disqualification of a candidate on the basis of default specifically provided under subsection (1) of Section 152 of Punjab Local Government Ordinance, 2001 has been excluded in the Local Government Act, 2013. This Court can only interpret the statue but cannot circumvent the intention of the legislator. In this view of the matter, I am not inclined to upset the election of the respondent merely on the basis of the decree which is under challenge so far. So far as the disqualification of the respondent on the ground of non-disclosure of the decree passed against him is concerned, no such ground is provided under subsection (2) of Section 27 of the Act which deals with disqualification of a returned candidate. The disqualification of the respondent under Section 27(2)(c) of the Act, i.e. on the ground of “undischarged insolvent”, there is no definition provided in the Punjab Local Government Act of “undischarged insolvent”. In absence of definition of “undischarged insolvent” in the Act, the applicable law is the Provincial Insolvency Act, 1920. The minute perusal of the above provisions coupled with the allegation levelled by the petitioner against the respondent that he has not specifically mentioned the decree passed against him clearly reveals that the respondent has not committed any of the acts of insolvency detailed in Section 6 of the PIA, 1920, as such, he cannot be termed as “undischarged insolvent”. Therefore, the respondent, in my opinion, cannot be disqualified on the said ground of insolvency in constitutional jurisdiction of this Court. The case law reported as Liaqat Ali and others v. Returning Officer and others (2016 MLD 846 Lahore) is referred in this regard.”
In the judgment reported as 2017 CLC Note 194 in the matter of “Umar Shahzad v. Nasir Mahmood and others”, conviction of the candidate for an offence involving moral turpitude for a sentence exceeding two years and still holding, whereupon his nomination papers were rejected, was under judicial review. The Hon’ble High Court concluded the matter in the following terms:
“11. For the reasons stated above, I am of the view that sentence awarded to respondent No.1 on the charges of moral turpitude is exceeding two years and the same is still holding field, therefore, having regard to the provisions of section 27(2)(i) of the Act ibid the said respondent is not eligible to contest the elections of the local bodies. 12. The ground urged by the learned counsel for respondent No.1 that the disqualifications specified in Articles 62 and 63 of the Constitution for a candidate to be elected as a member of Parliament or Provincial Assemblies does not find mention in section 27 of the Punjab Local Government Act, 2015, therefore, respondent No.1 cannot be declared ineligible to contest the election in hand is not tenable. Non-inclusion of entire disqualifications mandated in Articles 62 and 63 of the Constitution in the Punjab Local Government Act, is perhaps for the reason that different functions and responsibilities are to be performed by the Local Government on the one hand and the Federal and the Provincial Assemblies on the other hand. However, disqualifying conditions laid down in section 27(2)(i) of the Act reproduced supra have a very wide import. These cover the conditions of integrity and good character laid down in the aforesaid Articles. In the case of respondent No.1 the Hon’ble apex Court has already held that he is a faker who not only betrayed the confidence of voters but cheated them in a shameless manner, therefore, a person against whom such findings have been given by the Hon’ble apex Court cannot be said to be a person of integrity and good character who can be allowed to contest the elections of local bodies.
In the case titled “Munawar Hussain Bukhari v. Appellate Authority”, the candidature of the candidate for being elected as a General Councilor was challenged on twofold grounds, firstly, that he was an employee of Utility Stores Corporation of Pakistan and a period of five years has not lapsed since his dismissal from service on 26.12.2013 and secondly that he was involved in criminal cases and has been declared absconder from the Court of law and was thus disqualified to contest the elections under Section 27 of the Punjab Local Government Act, 2013. The Returning Officer, vide order dated 08.10.2015 dismissed the objections raised by the petitioner and accepted the nomination papers filed by the candidate to contest local bodies election. This order was maintained by the Appellate Authority/Tribunal, with the observations that the candidate was not a regular employee of Utility Stores Corporation of Pakistan (Private) Limited. Moreover, the petitioner did fail to produce any record regarding conviction passed by any court of law against the candidate” vide impugned order dated 4.11.2015. Writ Petition was also dismissed, vide impugned order dated 9.11.2015 and orders passed by the lower fora were maintained on the grounds that the candidate was not a government servant/employee neither falls in the definition of a public servant and that the documents attached by the petitioner did not show, in any manner whatsoever that the candidate had been convicted by any competent Court. The august Supreme Court of Pakistan in the judgment reported as 2016 SCMR 1087 observed that:
“No material was produced to prove any conviction from the Court of competent jurisdiction as postulated under clauses (i) and (j) of subsection (2) of section 27 of the Act, 2013. Admittedly, the candidate was employed in the Corporation as a Record Keeper (BS-9) on contract basis for a period of one year, vide appointment letter dated 21.01 2013. It is also not denied that the respondent was found guilty of “misconduct” (absent from duty, disobedience, willful negligence, inefficiency, dereliction in duty) and the competent authority inflicted major penalty of dismissal from service upon him with immediate effect, vide order dated 26.12.2013. . For the purposes of attracting disqualification under clause (e) of subsection (2) of section 27 ibid, it is to be seen that the candidate or the elected member of the local body is in the service of “statutory body” or “body”, which is owned and controlled by or that controlling share or interest therein is of Federal, Provincial or Local Government. Thus the service of a “statutory body” or “body” of the kind mentioned in clause (e) of provision noted herein is undoubtedly “Public Service” within the contemplation of clauses (g), (h) and (i) of the subsection (2) of section 27 ibid. term “in the Service of any statutory body or a body which is owned or controlled by the Government or a Provincial Government or a local government or, in which any of such Government or Local government has a controlling share or interest” is a phrase similar to phrase “in service of Pakistan or of any statutory body or anybody which is owned or controlled by the Federal, Provincial Government or Local Government”. Per clauses (i), (j) and (k) of sub-Article (1) of Article 63 of the Constitution of Pakistan, 1973 such phrase is further qualified with “or in which the Government has a controlling share or interest’.
12. In view of the foregoing discussion, impugned judgments of the High Court and orders of the forums below cannot be sustained. On the date of nomination, Respondent No.3 was under legal bar to contest election of Local Government as five years had not elapsed from the date of his dismissal dated 26.12.2013 from public service of the Corporation.”
In the case titled “Zahid Iqbal Vs. Hafiz Muhammad Adnan and others”, matter of disqualification on account of dual nationality was under judicial review. The august Supreme Court of Pakistan in the judgment reported as 2016 SCMR 430 held as under:
11. It is an admitted position that the petitioner had already renounced his UK citizenship with effect from 04.10.2012. Disqualification on account of dual citizenship within the contemplation of clause (a) of subsection (2) of section 27 of the Act, 2013 is not attracted in instant case as on the date of nomination papers, the petitioner was admittedly not holding any dual citizenship. The moment a person gives up his dual nationality, he becomes eligible to put forth his candidature for election as a member or to hold an elected office of a Local Government under section 27 of the Act, 2013, unless of course disqualification on account of holding dual citizenship was inflicted by the “Election Commission” under clause (b) of subsection (3) of section 27 of the Act of 2013. There is nothing on record to show that the “Election Commission” had ever inflicted any such disqualification on the Petitioner, therefore, bar to contest election for a period of four years would not be attracted in the case in hand.
14. Disqualification on account of dual nationality within the contemplation of clause (a) of subsection (2) of section 27 of the Act, 2013 would only apply as long as any person continues to hold citizenship and or nationality of any other foreign State, the moment he renounces such dual nationality and is a citizen of Pakistan he is qualified to contest election. Disqualification provided under “any law” including “The Constitution” by implication cannot be invoked and or read into provisions of the Act, 2013. It is not the function of the Court to read into any provision and or words that are not part of the statute, unless imported or made applicable specifically as has been done under the Sindh Local Government Act, 2013, wherein section 36(j) clearly imports disqualification “under any law” it reads “he is for the time being disqualified or chosen as a member of the Provincial Assembly under any law for the time being in force.” It is neither the duty nor the function of the Court to read into or delete any word and or provisions in an enactment, unless specifically adopted or imported by reference. Courts do not legislate but interpret statute according to their ordinary and plain meaning and do not import and or supply word or provisions from “any other law”, no matter how laudable and desirable it may appear to be. In this view of the matter, disqualification prescribed under “any law” or even in “The Constitution” unless as noted above are specifically made applicable or adopted by reference, specially penal and or castigatory provisions contained in “any law” cannot be imported, read into or inflicted on a person who put forth his candidature to be elected as a Member or to hold an elected office of Punjab Local Government but his qualification and or disqualification for any office of the Punjab Local Government is to be adjudged strictly under the provisions of “the Act, 2013” only.
In the judgment reported as 2016 SCMR 242 in the case titled “Shakeel Sardar Awan v. Election Appellate Authority”, the vide interpreting clause (e) of subsection (2) of section 27 of the Act, 2013 (corresponding to this section) observed that there can be no gainsaying that the post of the Chairman or any member of the District Board is entirely formal in nature and it has no independent role to play; to confer any benefit on any person by dis-regarding the policy guidelines given by the Provincial Board. We have gone through the entire scheme of the Bait-ul-Mal Act, 1992 and the provisions of section 7(2) thereof, which clearly provides that non-official member shall not draw any salary, but shall be entitled to such facilities and privileges as may be prescribed from time to time. It is not established at the bar that the Chairman is paid remuneration or any type of emoluments in cash thus it appears that except some privileges or facilities which are provided at office, nothing is paid in cash either as remuneration or “honorarium”. Hence, in the absence of clear proof, which has not been provided to us, it could not be held on high presumption that the contesting respondent as Chairman, District Bait-ul-Mal is getting pecuniary benefits from the Government or/and from the fund/revenue generated by the Bait-ul-Mal at the Federal level, the Provincial level or to say, the District level.
In the matter of “Ghazanfar Ali v. Appellate Authority”, the Hon’ble Supreme Court of Pakistan in the judgment reported as PLD 2016 SC 151 observed that from the clear expression of section 18 of the Zakat and Ushr Ordinance, 1980, it is unmistakably manifest that a Member of the Local Committee, who may ultimately be elected as a Chairman thereof by following the procedure provided in Section 18(5) is not a person who has been appointed or even nominated by any officer of the Zakat and Ushr department or any other functionary of the State, rather the filling up of the post/position of Member is a process of “selection” made by a Selection Team as envisaged by Section 18(4) which (provision) provides the necessary details, the particulars and also the procedure thereof. This process of selection, although cannot be considered to be an election, however it is an exercise of choosing the most suitable person of a locality to be a Member of the Local Committee in an open and transparent manner in a public gathering organized by the Selection Team. It is, therefore, the residents of the locality who are given the privilege of selecting or choosing one amongst themselves [subject to meeting of qualifications prescribed by Section 18(4)] as their representative for the purposes of providing voluntary help to achieve the object of the Ordinance. It may be restated that the Members of the Local Committee are not appointed as such, as is the concept of appointment of a person in any government service, or the service of any State owned organization or even a statutory body over which the State or its extended limbs would have control and authority. Likewise a Chairman of the Local Committee is a person who has the requisite qualifications [see Section 18(5)] and is elected from one of the Members of the Local Committee. So a person does not become a Member and/or Chairman through a process of appointment by any official of the Zakat and Ushr Department or by any other official act of the Government. It seems that in line with the object of the law highlighted above for the purposes of the disbursement of Zakat and Ushr to the truly deserving people of a locality, pious and notable persons of that area are selected as the Member and/or Chairman by the participation of the residents of the locality who, as mentioned earlier, act as their representatives by undertaking a voluntary assignment. It may also be pertinent to mention that for this voluntary work the Member or the Chairman, as has been unequivocally avowed by the counsel for the petitioners and is not disputed by the respondents’ side and even otherwise is not established from any law or the terms of assignment, do not receive any salary, honorarium or monetary benefits of any nature whatsoever. There are broadly three methods in which a Member or Chairman of a Local Committee may be removed. The first is under the proviso to Section 18(9) of the Ordinance, whereby the District Committee may, in consultation with the Federal Government, remove a Chairman or a Member of the Local Committee from his office. We are of the opinion that this provision certainly does not mean that power of removal or dismissal vests with the official(s) of the Zakat and Ushr department or the State or any government official for the following reasons: (i) such removal is not by any particular Government official or State functionary, rather the District Committee (see Section 17(3) for its constitution); (ii) the Federal Government need only be consulted, which consultation shall certainly not have a binding effect; and (iii) such empowerment has only been inserted as a proviso to the provision stipulating the maximum years of a term of office of a Member or Chairman of a Local Committee, and subsequent nomination in terms of the said proviso is only for the remaining unexpired term of the predecessor Member or Chairman, thus this method is not one utilized as of course. The second method is under the provisions of Section 21 of the Ordinance whereby a Provincial Council may be resolution remove a Member or Chairman of a Local Committee from office in certain circumstances [including misconduct, abuse of power, physical inability, etc.; see Section 21(3)1. Now although the Provincial Council contains some Government officials who are ex-officio Members and Chairman (see Section 14), the power conferred upon such Provincial Council by virtue of Section 21 can only be exercised in the circumstances for removal provided in the said section. It is not that a sweeping power or discretion of removal or dismissal has been vested with the Provincial Council. Furthermore, the fact that the Provincial Council consists of certain Government officials, should not detract us from the whole object and purpose of the Ordinance, and the fact that they too do not receive any salary, honorarium or other monetary benefits for the voluntary work that they carry out vis- -vis Zakat and Ushr. The third method is removal by the District Committee by a vote of no-confidence in terms of the provisions of Section 21-A provided above. In light of the above, it does not seem to be the case that the power of removal lies predominantly with the State or Government officials. Thus all the three modes looked at from any angle do not fit in the legalistic and the conceptual mechanism which is provided and prescribed for the dismissal or removal of the person who is in the service of the State or a statutory body; which removal etc. is primarily and ordinarily founded upon misconduct or inefficiency as per the law and the rules prescribed for such removal etc. The Members and the Chairman of the Local Committee are to be considered persons “engaged in”, and not “employed for” the administration of the Ordinance. Therefore, in our opinion the Members and the Chairman of the Local Committee are persons who are engaged in the administration of and not employed in any statutory body on account of the above.
The Hon’ble Lahore High Court in the judgment reported as PLD 2016 Lahore 539 in the case titled “Ahmad Nawaz Khan Bakhtiari v. Appellate Authority and others”, while thrashing the matter of age of candidate mentioned in the nomination papers on the basis of birth certificate, held that entry in the CNIC will be preferred being a public document having a probative value.
It was claimed that one of the candidates for the joint candidature of Chairman and Vice-Chairman of Union Council was not qualified being under 25 years of age at the time of filing of his nomination papers. The Returning Officer returned the nomination papers. Appeal filed by the candidate was accepted by the appellate authority. Operative part of the judgment is reproduced below:
“7. It is by now settled proposition of law that entries in CNIC are considered to be more authentic and admitted to be correct and have to be given preference over other documents/certificates unless the same was rebutted by better and strong evidence. The Court viewed that entries in the National Identity Card carry sufficient weight to be considered for determining the age of any person. This being the position, preference is to be given to the entries made in the Identity Card issued under Section 10 over the entries made in the Birth Registration Certificate and that too issued after issuance of National Identity Card or any other document including School Leaving Certificate which do not carry equal authenticity.”
9. This Court is of the considered view that respondent No.3 was less than 25 years of age at the time of submission of his nomination papers and was thus not eligible to contest election in view of the bar contained in Section 27(1)(b) of the Punjab Local Government 2013.”
The Hon’ble Lahore High Court in the judgment reported as 2016 YLR 2055 in the case titled “Qaiser Abbas v. District Election Commissioner” observed that respondent being chairman of the Market Committee could only qualify to contest local government election if he had resigned from being as such and a period of not less than two years had elapsed. In another judgment reported as PLD 2016 Lahore 251 titled “Ghulam Mustafa v. ASJ Chunian”, the Hon’ble Lahore High Court observed that ‘Nikkah Registrar’ duly appointed under the Muslim Family Laws Ordinance, 1961 falls within definition of ‘Public Servant’ in terms of section 21 of the PPC and as such was disqualified under section 27 of the PLGA, 2013. The Hon’ble Lahore High Court in the matter of “Asif Nadeem v. Additional Sessions Judge” through judgment reported as 2016 MLD 1128 observed that candidate being Legal Advisor was in service of the TMA under the control / supervision and with the power of appointment and removal with the payment of remuneration / compensation by the Government, hence hit by the provisions of section 27 of the PLGA, 2013. In another reported judgment cited as 2016 MLD 846, in the matter of “Liaqat Ali v. Returning Officer”, the Hon’ble Court observed that a “Willful Defaulter” who was not adjudged as “undischarged insolvent” could not be precluded from election process merely on ground that he had some loan to pay. Operative part of the judgment is reproduced below:
18. It is thus abundantly clear from the current legislation that the legislature intentionally avoided to use the word “willful defaulter” in the Punjab Local Government Act, 2013, therefore, in the absence of such words the person who is not adjudged as “undischarged insolvent” cannot be precluded from the election process merely on the ground that he/she has some loan to pay. In the case of Punjab Local Government Act, 2013 the legislature in its wisdom opted only to bar the entry of “undischarged insolvent” and not a “defaulter-of loan”. It is not for this Court to supply the omission of the legislature. The principle of “Casus Omissus” has a long been followed by the Courts in Pakistan.
In the judgment reported as PLD 2015 Lahore 28 in the case titled “Rizwan Zaka Gill v. Govt. of Punjab”, the Hon’ble Lahore High Court observed that there is a parity and harmony between section 27(2)(i) of the PLGA, 2013 and Article 62(f) of the Constitution. Relevant paragraphs of the judgment are reproduced below:
“3. Article 140-A of the Constitution directs the establishment of local governments through elections by the Election Commission of Pakistan. The Act modifies earlier law to implement the said constitutional mandate. Local governments lack legislative power. In comparison to members of the Provincial and Federal legislatures, these governments discharge different functions and responsibilities. Accordingly, the proposition advanced by the petitioner that precisely the same qualifications should attach to candidates for local government offices as are applicable to candidates for Parliament and the Provincial Assemblies suffers from generalization, lack of nexus and classification. The qualifications for election to the legislative assemblies under the Constitution may have wider scope on account of the higher responsibilities of such institutions. Local governments may therefore be classified differently. For that reason, there is no legal necessity that local government elections should require all qualifications mandated for a candidate for the Provincial and the Federal legislatures.
6. In the case of local governments, there is no qualification regarding educational achievement. Accordingly, the line of cases relied by learned counsel would not be directly relevant in the present case. Be that as it may, for any other allegation of dishonesty or corruption a fair standard is laid down in S. 27(2)(i) of the Act that there should be a determination by a competent court of law before actually disenfranchising or excluding a candidate from exercising his right to contest an election to a local government office. The same principle is also enshrined in Article 62(f) of the Constitution reproduced above. In this respect there is parity and harmony between the qualifications prescribed for eligibility to contest local government elections and parliamentary elections.”
63. Effect of being found to be disqualified to be a candidate, Head of the local government, Deputy Mayor, Vice Chairperson, Speaker, or a Councillor.– #
(1) A person, on being found by the Election Commission to have filed nomination papers for a local government election or holding the office of a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or a Councillor, while knowing that he is not eligible to file such nomination papers or to hold such office; or have made election expenses in excess of the prescribed limit; or have failed to file a return on election expenses; or filed a return that contains particulars that to his knowledge are false or misleading, shall:
(a) in case he is a candidate to a local government election, stand disqualified from being a candidate for the office of the Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or a Councillor, for a period of four years from the date of disqualification.
(b) in case he is a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or a Councillor shall, cease forthwith to hold such office, and shall also stand disqualified from being a candidate in the local government election, for a period of four years from the date he ceased to hold such office.
(2) Any resident of the relevant local area may make a written complaint to the Returning Officer or the Election Commission to seek disqualification of a candidate from contesting local government election or from holding office on any ground mentioned in this section.
(3) Every order of the Returning Officer or the Election Commission under this section shall be passed in writing and after conducting inquiry as deemed appropriate and after affording right of hearing to such candidate or office holder as the case may be.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| – | 111 | 63 | 72 | 63 |
64. Bar against double membership.– #
(1) No person shall simultaneously hold the office of a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker, or a Councillor in more than one local governments.
(2) No person shall simultaneously hold more than one such elected offices in the same local government except a Councillor who is elected as the Speaker.
(3) No person shall simultaneously hold the office of a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or a Councillor and a Member of the Parliament or Provincial Assembly.
(4) Where a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker, or a Councillor is elected to any other such political office, his seat held in the local government shall become vacant, immediately upon taking oath of such office.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 28 | 112 | 64 | 73 | 64 |
Comments
This section expressly bars dual membership in a manner that a person cannot simultaneously hold office of a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker, or a Councillor in more than one local government; more than one election office in the same local government except a Councillor elected as the Speaker; office of a Member of Parliament or Provincial Assembly. The Section further says that where such elected office is elected to any other political office, his seat shall immediately become vacant on taking oath of such political office. The Hon’ble Islamabad High Court in the judgment reported as 2019 CLC 830 in the matter of “Zahid Nadeem v. Election Commission of Pakistan” held that resignation once tendered cannot be withdrawn and become effective there and then due to deeming clause contained in section 34(2) of the Punjab Local Government Act, 2013. Relevant paragraph of the judgment are reproduced below:
“16. It is an admitted position that the petitioners had submitted their resignations from the Chairmanship of Union Councils so as to enable them to contest the general elections held on 25.07.2018. Had the petitioners not submitted such resignations, their nomination papers for contesting the general elections would not have been accepted. After being unsuccessful in the general elections, the petitioners want to retain their seats as Chairman of the Union Councils by withdrawing their resignations (which had been submitted prior to the acceptance of their nomination papers by the Returning Officers for the general elections). In the case at hand, what needs to be determined is whether a resignation submitted (for whatever reason) by a Chairman of a Union Council in accordance with Section 34(1) of the Punjab L.G. Act can be withdrawn in view of the deeming clause contained in section 34(2) of the Punjab L.G. Act.
21. Even otherwise, it is my view that a resignation submitted in accordance with the requirements of section 34(1) of the Punjab L.G. Act, cannot be considered as invalid or irregular simply because it was not forwarded to the Election Commission of Pakistan in accordance with the procedure prescribed in 2016 Rules. Since there is no requirement in Section 34 of the Punjab L.G. Act for resignation submitted by the Chairman of a Union Council to be approved by a house of a local government before the same is forwarded to the Election Commission of Pakistan or for there to be an endorsement of the officer or official receiving the resignation, certifying that the resignation has been delivered in person with free will, a resignation submitted in accordance with Section 34 of the Punjab L.G. Act, cannot be considered as invalid or irregular on account of non-compliance with the requirements of the said Rules.”
The Hon’ble Lahore High Court in the judgment reported as PLD 2018 Lahore 895 in the matter of “Shehzada Munawar Javed Khudai and another v. Election Tribunal Multan and other” while interpreting section 28 of the Punjab Local Government Act, 2013 which contained provisions corresponding to this section, observed that:
“12. Another aspect of this issue is the burden placed on the election process and the voter, simply because the holder of the offices mentioned in section 28 of the PLGA has to make a choice and where the decision involves the risk of losing the present office. If the holders of the barred offices do not resign before filing nomination papers, they can be declared successful in the elections for the other political office. This means that the candidate is able to exercise his or her choice after going through the entire election process. If the candidate is successful they resign from the present office and if unsuccessful they go back to their present office. In all situations the issue is one of personal choice and the risk attached with such choices. A candidate cannot use the offices named in section 28(1) of the PLGA as a fallback position in the event that he or she is not successful in the run for some other public office, in this case the Provincial Assembly. We are of the opinion that the Petitioner has the right to choose between either offices and cannot require the entire process to bear the burden of her ‘risk’. Time and again we have been informed by her counsel that she will resign if she can contest the Bye-Elections. In this regard, we are of the opinion that a wrong precedent cannot be set to comply with the wishes of one candidate.
13. The ‘resign to run’ principal is premised on encouragement to run for public office and to make the process of election more competitive. It creates a level playing field and ensures that a person holding public office does not divert its resources for personal advancement. It is also a check on those holding public office and ensures that they do their jobs and can account for.”
65. Term of office of the Council, Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or a Councillor.– #
(1) Subject to this Act, the term of office of a Council shall be four years commencing on the date on which it holds its first meeting.
(2) The term of office of every Head of the local government, Deputy Mayor, Vice Chairperson, Speaker, and Councillor shall, unless removed earlier under this Act, be the same as that of the term of office of the Council.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 30 | 113 | 65 | 74 | 65 |
Comments
This section deals with the term of the office of the elected officials which is four years and commence from the date on which the Council holds its first meeting. The Hon’ble Supreme Court in the judgment reported as P L D 2022 Lahore 817 in the case titled “Mubashar Javed and others Vs. Province of Punjab and others” examined the matter of term of local governments elected under the Punjab Local Government Act, 2013 and observed as follows:
“19. In political theory, “term of office” and “tenure of office” are terms oftentimes contrasted with each other. Term of office refers to the period, either fixed by the Constitution or a Statute, within which a public official may hold office. Tenure of office, on the other hand, is the period within which a public official actually held office within a prescribed term. In other words, term of office is fixed, while tenure of office is variable.
23. Now the questions arise whether the term of office mentioned in Section 30(1) of the Act of 2013 is date specific or time specific or whether such time is inclusive or exclusive. As is evident from the prayer of the Petitioners that they only intend to include the period which was consumed during dissolution of the Act of 2013 till passing of judgment of Hon’ble Supreme Court of Pakistan dated 25.03.2021 which comes to almost twenty-two (22) months. A combined reading of section 30(1) and section 126 of the Act of 2013 referred above makes it quite clear that if any local government is elected for a period of five years, the said period would be governed by section 30(1) of the Act of 2013 and it would start on the date when first meeting of the elected local government was held and that too is subject to other provisions of the Act of 2013 which empowers the Government to dissolve the local government under Section 126 of the Act of 2013. It is an admitted position between the parties that the first meeting of the elected local governments under the Act of 2013 was held on 02.01.2017 in terms of Notification issued on 01.01.2017 and the term of holding office for five years started from that date which would expire after completing five years. The Hon’ble Supreme Court in the case of Asad Ali Khan case supra. has observed that “under the Act of 2013, elections of the local governments were held in the province of Punjab in phases in the years -2015-2016, as a result of which local governments in the province of Punjab were elected and by section 30 of the Act of 2013, a local government was to remain in office for a period of five years from the date it holds its first meeting. There is no dispute that the first meeting of the local governments in Punjab was held in January, 2017 and thus, the local governments were to remain in office until January, 2022”. Admittedly, the local government constituted under the Act of 2013 were dissolved on 04.05.2019 due to promulgation of Act of 2019 through Section 3 and the same were restored in terms of judgment passed by the Hon’ble Supreme Court of Pakistan on 25.03.2021 pursuant to which, the previous local governments were restored in terms of Notification issued on 17.10.2021 by the LG and CD Department and they started performing their functions. 24. In the light of aforementioned circumstances and case law referred above, it is obvious that the word ‘term’ mentioned in section 30(1) of the Act of 2013 is fixed and definite in its nature. For getting benefits of aforesaid term, it has to be read with other provisions of the Act of 2013 and the time for holding an office for a period of five years is not extendable by any means which would commence on a date on which the members/representative of local government hold its first meeting which in the case of the Petitioners was held on 01.01.2017 and the same would expire on 31.12.2021.”
66. First Meeting and Oath of office.– #
(1) As soon as may be but not later than one month after the notification of results of an election by the Election Commission, the date or several dates of the first meeting of the Councils shall be fixed by the Election Commission.
(2) A person elected as a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor shall, before assuming his office, make and subscribe to an oath, appropriate to his office, in the form set out in the Fourth Schedule.
(3) The Election Commission shall nominate the Presiding Officers who shall administer the oath.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 31 | 114 | 66 | 75 | 66 |
67. Effect of failure to take oath.– #
(1) The Election Commission shall, after giving an opportunity to show cause, disqualify an elected Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor from holding office, who fails to take oath within sixty days from the date of first meeting of the Council.
(2) Chief Officer or any resident of the relevant local area may make a written complaint within one month to the Election Commission for disqualification of a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor under this section.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| – | 116 | 67 | 76 | 67 |
68. Resignation by a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor.– #
(1) Any Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor of the Metropolitan Corporation or District Council may, at any time, resign from his office by writing under his hand to the respective Chief Officer, whereupon his resignation shall be deemed to have been accepted and effective forthwith.
(2) The Chief Officer upon receipt of resignation under sub-section (1) shall forthwith forward it to the Deputy Director of the Directorate in the district concerned, who shall forward it to Secretary.
(3) The Chairperson, Vice Chairperson, or Councillor of Union Council may, at any time, resign from his office by writing under his hand to the respective Secretary of Union Council, whereupon his resignation shall be deemed to have been accepted and effective forthwith.
(4) The Secretary of Union Council upon receipt of resignation under sub-section (3) shall forthwith forward it to the Assistant Director of the Directorate in the tehsil concerned, who shall forward it to Secretary.
(5) The Secretary upon receipt of resignation under sub-section (2) or (4) shall immediately send the copy of resignation to the Election Commission which shall, by notification to be issued within fifteen days from the date of receipt of resignation, declare the office of the resigning Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor to be vacant from the date of receipt of resignation.
(6) Notwithstanding the resignation of a Head of the local government, Deputy Mayor, Vice Chairperson, Speaker or Councillor under subsections (1) and (3), any proceedings for his removal under this Act, if already initiated, shall not abate as the same may result in his disqualification.
Comments
The main spirit of the provisions contained in this Section is to ensure that once an elected official resigns from his office in writing, it shall become effective forthwith and it cannot be withdrawn later. Sub-section (6) of this section further provides that if before resigning from office, proceedings for his removal, if any, pending under the Act shall not stand abated as the same may result in his disqualification. Purpose of insertion of sub-section (6) is to ensure that no elected official, who is likely to be disqualified as a result of his removal, shall avoid such disqualification by tendering resignation.
The Hon’ble Islamabad High Court in the judgment reported as 2019 CLC 830 in the case titled Zahid Nadeem v. Election Commission of Pakistan held that resignation once tendered cannot be withdrawn and become effective there and then due to deeming clause contained in section 34(2). Relevant paragraphs of the judgment are reproduced below:
“16. It is an admitted position that the petitioners had submitted their resignations from the Chairmanship of Union Councils so as to enable them to contest the general elections held on 25.07.2018. Had the petitioners not submitted such resignations, their nomination papers for contesting the general elections would not have been accepted. After being unsuccessful in the general elections, the petitioners want to retain their seats as Chairman of the Union Councils by withdrawing their resignations (which had been submitted prior to the acceptance of their nomination papers by the Returning Officers for the general elections). In the case at hand, what needs to be determined is whether a resignation submitted (for whatever reason) by a Chairman of a Union Council in accordance with Section 34(1) of the Punjab L.G. Act can be withdrawn in view of the deeming clause contained in section 34(2) of the Punjab L.G. Act.
21. Even otherwise, it is my view that a resignation submitted in accordance with the requirements of section 34(1) of the Punjab L.G. Act, cannot be considered as invalid or irregular simply because it was not forwarded to the Election Commission of Pakistan in accordance with the procedure prescribed in 2016 Rules. Since there is no requirement in Section 34 of the Punjab L.G. Act for resignation submitted by the Chairman of a Union Council to be approved by a house of a local government before the same is forwarded to the Election Commission of Pakistan or for there to be an endorsement of the officer or official receiving the resignation, certifying that the resignation has been delivered in person with free will, a resignation submitted in accordance with Section 34 of the Punjab L.G. Act, cannot be considered as invalid or irregular on account of non-compliance with the requirements of the said Rules.”
69. Fresh elections in case of casual vacancy in the office of a Speaker.– #
(1) If the office of the Speaker of a Council, other than a Union Council falls vacant during the term of the Council due to his removal on the basis of misconduct, disqualification or any other reason, the Election Commission shall hold a fresh election to the office of the Speaker of the Council.
(2) The Speaker of a Council elected through a fresh election under this section shall, unless removed earlier under this Act, hold office only for the residual term of the Council.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| – | – | 69 | 78 | 69 |
70. Filling up of casual vacancies of Head, Deputy Mayor, Vice Chairperson and Councillors.– #
(1) If, for any reason, the office of a Head in a Metropolitan Corporation or a District Council falls vacant during the term of a Council, the Deputy Mayor nominated by the Political Party or the Electoral Group to which the Head belonged, shall stand elected as Head.
(2) If, for any reason, the office of a Deputy Mayor of a Metropolitan Corporation or a District Council falls vacant, the councillor nominated by the Political Party or the Electoral Group to which the Deputy Mayor belonged, shall stand elected as Deputy Mayor.
provided that in case of District Councillor, the nominated Councillor shall be the voter of the respective Tehsil from which the Deputy Mayor belonged.
(3) If, for any reason, the office of a Chairman in a Union Council falls vacant during the term of a Council, the Vice Chairman shall stand elected as Chairman.
(4) If, for any reason, the office of a Vice Chairman falls vacant, the councillor nominated by the political party or electoral group to which the Vice Chairman belonged, shall stand elected as Vice Chairman.
(5) If, for any reason, the office of General Councillor in a local government falls vacant during the term of a Council, the candidate immediately below the last elected candidate in the ranking order in the list of the political party or electoral group to which the General Councillor belonged, shall stand elected.
(6) If, for any reason, the office of a Councillor on reserved seat in a local government falls vacant during the term of a Council, the additional candidate from the list of the political party or electoral group to which the Councillor on reserved seat belonged, shall stand elected to that office.
(7) If at any time, the list is exhausted, the concerned Political Party or Electoral Group may submit additional names for any vacancy, which may occur thereafter.
(8) A Head, Deputy Mayor, Vice Chairperson or Councillor elected under this section shall, unless removed earlier under this Act, hold office for the residual term of the Council.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 32 | 118 | 70 | 79 | 70 |
71. Power of the Chief Minister to appoint an administrator.– #
On expiry of the term of a Council, or otherwise pending the constitution of a new local government or a Council, the Chief Minister shall, by an order published in the official Gazette, appoint any of its officers to perform such functions and exercise such powers and authority of the respective local government as may be specified in that order.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 30(3) | 121 | 71 | 80 | 71 |
| RELEVANT NOTIFICATION | |
| 1. | Notification No. SOR(LG)1-11-2019 dated 17.01.2023 regarding “Appointment of Officers as Administrators under PLGA, 2022”. |
