Law: Constitution of Pakistan, 1973

Section: 8,32

Law: Khyber Pakhtunkhwa Local Government Act, (XXVIII of 2013)

Section: 24, 27, 74(3), 112(2)

REMARKS

(a) The supremacy of the Constitution demands that any legislation must conform to constitutional requirements. If found in violation of the Constitution, the Court has the authority to declare such legislation unconstitutional and void. Furthermore, if the enabling or parent Act (i.e., the Act providing for delegation) is deemed void, any subordinate or delegated legislation made under that Act will also be declared unconstitutional and void. The limits imposed by the Constitution may be either express or implied. An express limit, as provided in the Constitution, stipulates that any law inconsistent with or contradicting Part II, Chapter 1 (Fundamental Rights) of the Constitution shall be void.
(b) The principle of judicial deference mandates that courts should avoid encroaching upon the legislative domain unless the law in question is clearly ultra vires the Constitution. The courts have reiterated that mere allegations of bad faith, procedural irregularities, or policy disagreements do not provide sufficient grounds for judicial intervention. The Legislature, being a representative body, is presumed to act in the public interest. Therefore, courts may only intervene when a law either contravenes the Constitution or violates the fundamental rights enshrined therein.
(c) A combined reading of Rule 52(1) of the Local Government (Conduct of Elections) Rules, 2021 and Entry No. 2 of Part I of the Eleventh Schedule of the Act reveals that both use similar phraseology. Entry No. 2 of Part I of the Eleventh Schedule is not under challenge in the present writ petition. Moreover, the provision of Rule 52(1) is not in conflict with the parent statute; rather, it aligns with it. Additionally, Section 112(2) specifically confers power upon the Government to make rules with respect to the entries enumerated in Part I of the Seventh Schedule. In this context, Entry No. 1 specifically covers the subject matter of the present writ petition. Therefore, the Government, as defined in the Act, is well within its competence to frame rules on this subject.
(d) The doctrine of unopposed or uncontested election is universally recognized and respected across jurisdictions. Accordingly, it cannot be considered a violation of principal policy or unconstitutional merely based on subjective perceptions or unfounded objections.

 Summary of the Case:Election Challenge

The petitioner, Shazia Joses, challenged Rule 52(1) of the Khyber Pakhtunkhwa Local Government (Conduct of Elections) Rules, 2021, through a writ petition. She contested the local bodies election (31.03.2022) from Upper Kehal, Abbottabad, on a minority seat, secured 1010 votes, and claimed she had the third-highest votes among minority candidates in the Tehsil. However, her request for inclusion in the Tehsil Council was denied because seven candidates had already been elected unopposed.

She prayed for: