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SC Order for Implementation on Judgment in Workers Party Case

IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

Present:

Mr. Justice Iftikhar Muhammad Chaudhry, CJ

Mr. Justice Gulzar Ahmed

Mr. Justice Sh. Azmat Saeed

CMAs No.64 & 279 of 2013 in Const.P.No.87 of 2011 & CRP No.191 of 2012 in Const.P.No.87 of 2011

Workers Party Pakistan through its General  Secretary & others                                 (in CMA.64)

Muhammad Hussain Mehnati                                                                                                    (in CMA.279)

Workers Party Pakistan through its General Secretary & others                                  (in CRP.191)

Petitioner(s)

VERSUS

Federation of Pakistan & others (in all cases)

Respondent(s)

For the Applicant/Petitioner(s) :                               Mr. Bilal Hassan Minto, ASC

Mr. Mehmood A. Sheikh, AOR

(in CMA No.279 of 2013) :                                             Nemo

For the Federation :                                                        Mr. Dil Muhammad Alizai, DAG

For Election Commission of Pakistan :                     Mr. Muhammad Munir Paracha, Sr. ASC

Mr. Abdul Rehman, Addl.DG (Elections)

Mr. Sanaullah Malik, Director (L)

Date of Hearing : 12.03.2013

ORDER

We have heard learned counsel for the petitioner, who has read following Paragraphs from the Judgment dated 08.06.2012, reported as Workers’ Party Pakistan through Akhtar Hussain, Advocate & 6 others v. Federation of Pakistan & 2 others (PLD 2012 Supreme Court 681). For the sake of convenience, the aforesaid Paragraphs are reproduced herein below:-

“40. A bare reading of Article 218(3) makes it clear that the Election Commission is charged with the duty to ‘organize’ and ‘conduct the election’. The language of the Article implies that the Election Commission is responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. By conferring such responsibility on the Election Commission, the Constitution ensures that all activities both prior, on and subsequent to Election Day, that are carried out in anticipation thereof, adhere to standards of justness and fairness, are honest, in accordance with law and free from corrupt practices. This Court in Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), observed that “(g)enerally speaking election is a process which starts with the issuance of the election programme and consists of the various links and stages in that behalf, as for example, filing of nomination papers, their scrutiny, the hearing of objections and the holding of actual polls. If any of these links is challenged it really (is) tantamount to challenging the said process of election”. It interpreted that the phrase ‘conduct the election’ as having “wide import” and including all stages involved in the election process. These observations subject all election related activities that take place between the commencement and the end of the election process to the jurisdiction conferred on the Election Commission under Article 218(3). The Election Commission therefore has to test all election related activities that are carried out in the relevant period, both individually and collectively, against the standards enumerated therein.

41. The Election Commission may also exercise its powers in anticipation of an ill that may have the effect of rendering the election unfair. In the case titled as In Re: Petition filed by Syed Qaim Ali Shah Jellani (PLD 1991 Jour. 41) the Elections Commission exercised its powers under Article 218(3) pre-emptively, by making all necessary arrangements to ensure that a certain class of people would be allowed to vote. This case implies that where a violation of the standards mentioned in Article 218(3) has not as yet taken place, the Election Commission is legally empowered under Article 218(3) to exercise its powers pre-emptively in order to avoid a violation of these standards. Furthermore, Mst. Qamar Sultana v. Public at Large (1989 MLD 360) and In Re: Complaint of Malpractices in Constituency No. NA-57, Sargodha-V (supra) both reinforce the argument that the Election Commission is fully empowered by Article 218(3) to make ‘such orders as may in its opinion be necessary for ensuring that the election is fair, honest etc’. These decisions recognize that the Election Commission enjoys broad powers not only to take pre-emptive action but also to pass any and all orders necessary to ensure that the standards of ‘honesty, justness and fairness’ mentioned in Article 218(3) are met.

42. The Parliament has framed different laws to effectuate the above constitutional provision and to regulate elections to the National and Provincial Assemblies. ROPA reiterates and further vests the Election Commission with the responsibilities and powers to, inter alia, regulate and check intra-party affairs and actions taken by candidates and parties in anticipation of and on Election Day, resolve all election disputes, declare the election void and to award punishments for violating relevant election laws. In appreciation of the arduousness of its task, section 5(2) of ROPA further empowers the Election Commission to “require any person or authority to perform such functions or render such assistance for the purposes of this Act as…it may direct”. The Election Commission may, under section 103(c) of ROPA also “issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act and the rules”. Article 220 of the Constitution also directs the Federal and Provincial machinery to assist the Election Commission in fulfilling its constitutional responsibilities. The law, therefore, entrusts the Election Commission with exclusive, broad and extensive powers to attend to all issues related directly and ancillary to the election process.

43. Article 218(3) also empowers the Election Commission to ensure that the election process does not suffer from any corrupt and/or illegal practices. Sections 78, 79, 80, 80-A, 81 and 83 of ROPA comprehensively define the terms “corrupt practices” and “illegal practices”. ROPA in sections 82, 99 and 100 further elaborates the consequences of such practices and enunciate that the same form a sufficient basis for the Election Commission to, inter alia, imprison, fine and disqualify those who violate them. These provisions, therefore, subsume all those impugned activities as cognizable by the Election Commission. Similarly, Section 103(a) of ROPA instructs the Election Commission to ensure a “fair election”. In doing so it implies that “large scale malpractices including coercion, intimidation and pressures, prevailing at the election” would negate the ‘fairness’ elections are to embody. While sections 78, 79, 80, 80-A, 81 and 83 specify activities that the Election Commission can regulate and check under Article 218(3), section 103(a), substantially enhances this defined spectrum of cognizable activities and reinforces the obligation to check them. In section 103(c) section it empowers the Election Commission to issue instructions, exercise its powers and make orders to effectuate the said standard.

44. While there is no cavil with the proposition that the Election Commission stands as an independent and fully empowered constitutional body, the 18th and 20th Constitutional Amendments, have substantially enhanced the degree of independence and the scope of powers enjoyed by the Election Commission. Prior to 18th Constitutional Amendment, the Commission comprised the Chief Election Commissioner and two retired Judges as members thereof. Vide the 18th Amendment, the strength of the members has been increased from two to four, with the additional requirement that each of the members be a Judge of High Court of each Province, duly appointed by the President as per prescribed procedure provided for appointment of the Commissioner in clauses (2)(a) & (b) of Article 218(1) of the Constitution. The entrustment of greater responsibility and the enhancement of its strength are part of an effort fully to equip the Commission to discharge its broad set of responsibilities. These also reflect a growing trust in the Commission to act independently and without influence in conducting and organizing elections “fairly, honestly, justly and in accordance with law”. In the parliamentary system of government a constitutionally independent and empowered Election Commission rests as one of the foundational stones of a democratic setup. In the past, the Election Commission has succumbed to external influence and failed to discharge its responsibilities successfully. The inadequacy of the Commission’s effort in organizing and conducting the election to the above standards has had detrimental repercussions for the democratic system in Pakistan. Not only has it undermined the legitimacy of the elections and the claim of the winning party to form government, but has also, by disregarding express constitutional dictates regulating the same, devastated the trust and faith reposed by the citizenry in the rule of law and supremacy of the Constitution. This is why Pakistan has witnessed political parties, individual candidates, as well as the citizenry, reject and denounce some of the election results. The rigging of elections was cited as a major ground for the imposition of martial law in the country in 1977, which was unfortunately validated by the Supreme Court. Consequently, an unconstitutional order was imposed on the people of Pakistan with the false hope of holding fair and free elections within 90 days. The solemn commitment made by General Ziaul Haq, Chief Martial Law Administrator, however, was never honoured and the people of Pakistan remained subject to an unconstitutional regime for nearly 11 years. In light of the powers and independence that the Election Commission enjoys today, such an unfortunate abuse of power and disregard of the constitutional dictate to establish and preserve democracy seems impossible”.

2. We have pointed out to the learned Deputy Attorney General that as this Judgment was announced by this Court on 08.06.2012, wherein different Articles of the Constitution have been interpreted, particularly, Article 218 (3), crux whereof is available in different paras, particularly, reference of which has been made hereinabove, therefore, there should not be any technical problem to overcome any of the difficulties, if faced by the Election Commission of Pakistan, in organizing, conducting and making arrangements as are necessary to ensure that the Elections are conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against.

3. Learned counsel for the Election Commission of Pakistan stated that to implement the Judgment as well as to ensure holding of Elections strictly in accordance with the Article 218(3) of the Constitution, certain amendments have been suggested, details of which he is required to file before us by placing a comparative statement along with the other steps taken to implement the Judgment in view of the observations made therein.

4. The learned DAG may also seek instructions from the concerned quarters with reference to the implementation of Judgment wherein Article 218(3) of the Constitution had also been interpreted by the Court elaborately, therefore, the Executive Authorities in terms of Article 190 of the Constitution should have no hesitation to implement the Judgment and also to enforce the Constitution in letter and spirit read with the interpretation which had been made. This comprehensive report shall be submitted by both the sides by tomorrow.

5. Adjourned to 13.03.2013.

CJ.

J.

J

Islamabad
12.03.2013

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