P L D 2012 Supreme Court 681

 
Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ
 
WORKERS' PARTY PAKISTAN through Akhtar Hussain, Advocate, General Secretary
and 6 others---Petitioners
 
Versus
 
FEDERATION OF PAKISTAN and 2 others---Respondents
 
Constitution Petition No.87 of 2011, decided on 8th June, 2012.
(Petition under Article 184(3) of the Constitution challenging certain practices and process of
electioneering as violative of fundamental rights)
 
(a) Constitution of Pakistan---
 
----Arts. 17, 25, Part VIII [Arts.213 to 226] & Art.184(3)---Representation of the People Act
(LXXXV of 1976), Preamble---Constitutional petition under Art.184(3) of the Constitution
concerning election laws and prevailing electioneering and campaigning practices---
Maintainability---Freedom of association, equality of citizens---Scope---Right to form, or to be a
member of a political party guaranteed under Art.17 of the Constitution subsumed the right to
participate or contest in the election, and to form a government if successful---Petitioners had
vehemently averred that the impugned electioneering practices violated the fundamental rights of
the citizenry at large guaranteed by Art.17 read with Art.25 of the Constitution---None of the
respondents had rebutted the said assertion of the
petitioners, accordingly, present petition was held to be maintainable.
Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Mian Muhammad Nawaz
Sharif v. President of Pakistan PLD 1993 SC 473 ref.
Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Haji Muhammad Saifullah
Khan v. Federation of Pakistan PLD 1989 SC 166 and Mian Muhammad Nawaz Sharif v.
President of Pakistan PLD 1993 SC 473 rel.
 
(b) Constitution of Pakistan---
 
----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election
laws and prevailing electioneering and campaigning practices---Public interest litigation---
Nature---Inquisitorial proceedings---Jurisdiction of Supreme Court to adjudicate upon such
proceedings---Scope---Present petition fell under public
interest litigation, which was not adversarial but inquisitorial in nature---Supreme Court had the
jurisdiction to adjudicate upon a case if it fell within the ambit of inquisitorial proceedings.
Watan Party v. Federation of Pakistan PLD 2011 SC 997 and All Pakistan Newspapers Society
v. Federation of Pakistan PLD 2012 SC 1 ref.
 
(c) Constitution of Pakistan---
 
----Art. 184(3)---Constitutional petition under Art.184(3)---Powers of Supreme Court---Scope---
While entertaining a petition under Art.184(3), the Supreme Court had ample power to examine
the vires of laws, rules or regulations.
 
Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Farooq
Ahmad Khan Laghari v. Federation of Pakistan PLD 1999 SC 57; Jalal Mehmood Shah v.
Federation of Pakistan PLD 1999 SC 395; Liaquat Hussain v. Federation of Pakistan PLD 1999
SC 504; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Muhammad
Mubeen-us-Salaam v. Federation of Pakistan PLD 2006 SC 602 ref.
 
(d) Constitution of Pakistan---
 
----Preamble & Art. 2A---Constitutional Order---Nature, scope and principles---Constitutional
Order was a living manifestation of the will of the people of Pakistan, wherein, the people had
made clear that all authority to govern shall be exercised "within the limits prescribed by
(Allah)", and only by or on behalf of the people of Pakistan---Constitutional Order, therefore,
rested on two fundamental precepts; firstly, that the exercise of authority shall be informed and
circumscribed by the principles of Islam, and secondly, that the people of Pakistan shall play an
integral role in the exercise thereof---Any action or inaction that contravened said instructions
was ultra vires of this authority, unconstitutional and void.
 
(e) Constitution of Pakistan---
 
----Arts. 2A & 8(1)---Objectives Resolution---Scope---Laws inconsistent with or in derogation of
fundamental rights to be void---Article 2A, expressly instructed that principles of democracy,
freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed---
Protection and advancement of said principles was an integral objective and an essential feature
of the Constitutional Order---Article 2A mandated that the State shall guarantee fundamental
rights, including equality of status, of opportunity and before law, social, economic and political
justice, and freedom of thought, expression, belief, faith, worship and association, subject to law
and public morality---Article 8(1) of the Constitution enunciated the significance of said rights
and the principles that they embody, by declaring that all laws, or any custom or usage having
the force of law, in so far as it was inconsistent with the rights, shall, to the extent of such
inconsistency, be void---In effect said rights, as enunciated by Islam, had been placed on a higher
pedestal and enshrined as a central feature of the constitutional framework.
 
(f) Constitution of Pakistan---
 
----Preamble, Part II [Arts.7 to 40] & III [Arts.41 to 100]---Constitutional Order---Scope---
Constitution and democracy---Relationship---Scope---Constitutional Order declared that the
authority was to be exercised by the people of Pakistan---Vesting of said authority and entrusting
the exercise thereof to the people, emphasized the principle of self-government as the bedrock of
the constitutional framework---By guaranteeing the observance of 'principles of democracy' and
mandating that the "State shall exercise its powers and authority through the chosen
representatives of the people" the Constitution instructed that this authority was to be exercised
by and through a representative and democratic government---Constitutional Order was framed
with an ardent dedication 'to the preservation of democracy' and therefore encapsulated it as one
of its core values---Part II and III of the Constitution established and enumerated the powers and
manner in which the legislature was to function, which cemented 'democracy' as the chosen
system of the people and a fundamental constitutional dictate---Constitutional imperative of
'advancing and protecting Fundamental Rights, as enunciated by Islam, through a democratic
system of government' underpinned the operation of the Constitutional Order---Such symbiotic
relationship between 'democracy' as a governing system and the objective of 'advancing and
protecting Fundamental Rights, as enunciated by Islam' preserved and reinforced both said
constitutional dictates as cardinal features of the Constitution.
 
(g) Constitution of Pakistan---
 
----Art. 218---Election Commission---Duties---Election process---Significance and scope---
Election process was one of the key aspects of democracy and was identified and regulated by
the Constitution---Article 218 of the Constitution, constituted the Election Commission and
empowered it to organize and oversee the election process and to ensure, inter alia, that it was
conducted honestly, justly, fairly and in accordance with law and that corrupt practices were
guarded against.
 
(h) Words and phrases---
 
----"Honestly"--- Meaning.
Chambers, 20th Century Dictionary, New Edn. 1983, p.601 ref.
 
(i) Words and phrases---
 
----"Truth", "veracity"' and "honesty"--- Synonymy between the words.
Advanced Law Lexicon, 2005 Edn. Vol. 2, p.2153 ref.
 
(j) Words and phrases---
 
----"Honesty"---Scope.
Fakhruddin v. A. Shah PLD 1982 Kar. 790 and Amjad Khan v. Marium 1993 CLC 175 ref.
 
(k) Words and phrases---
 
----"Justly" --- Meaning and scope.
Black's Law Dictionary Revised 4th Edn. of 1968, p.1001; Chambers, 20th Century Dictionary,
New Edn. 1983, p.686; 2 Bom LR 845; Murtagh Barry (1890) 44 Ch.D 632; M.A. Rahim and
another v. Sayari Bai AIR 1973 Mad. 83, 87; Helen C. Rebellor v. Maharashtra S.R.T.C., (1999)
1 SCC 90, para.28: AIR 1998 SC 3191; Divisional Controller KSRTC v. Mahadeva Shetty
(2003) 7 SCC 197, para.15; Crewe v. Social Security Commissioner (1982) 2 All ER 745, 749;
T.Arumjuga Mudaliar AIR 1955 Mad. 622; P. Ramanatha Aiyar's "Advanced Law Lexicon",
2005 Edn. Vol.3, pp.2539 & 2540; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour
Appellate Tribunal PLD 1987 SC 447 and Shahi Bottlers (Pvt.) Ltd. v. Punjab Appellate
Tribunal 1993 SCMR 1370 ref.
 
(l) Words and phrases---
 
----"Fairly"---Meaning and scope.
Black's Law Dictionary Revised 4th Edn. of 1968, p.719; Chambers, 20th Centgury Dictionary,
New Edition 1983, p.452 and P. Ramanatha Aiyar's "Advanced Law Lexicon", 2005 Edn., Vol.
2, pp.1761, 1762 ref.
 
(m) Constitution of Pakistan---
 
----Art. 218(3)---Election Commission---Duties and powers---Words "justly", "fairly" and
"honestly" used in Art.218(3) of the Constitution---Implications---Said words implied that the
Election Commission was under a direct constitutional obligation to exercise all powers vested in
it in a bona fide manner, meeting the highest of standards and norms, therefore, as a natural
corollary all discretionary powers were also to be exercised and tested against such standards.
 
(n) Constitution of Pakistan---
 
----Art. 218(3)---Election Commission---Duties and responsibilities---Scope---Election
Commission was charged with the duty to 'organize' and 'conduct the election'---Article 218(3)
implied that the Election Commission was responsible not only for conducting the election itself,
but also for making all necessary arrangements for the said purpose, prior to the Election Day---
Constitution conferred such responsibility on the Election Commission and ensured that all
activities both prior, on and subsequent to Election Day, that were carried out in anticipation
thereof, adhered to standards of justness and fairness, were honest, in accordance with law and
were free from corrupt and/or illegal practices.
 
Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 ref.
 
(o) Constitution of Pakistan---
 
----Art. 218(3)---Election Commission---Powers to take pre-emptive action before a violation
occurs---Scope---Election Commission may also exercise its powers in anticipation of an ill that
might have the effect of rendering the election unfair---Where a violation of the standards
mentioned in Art.218(3) of the Constitution had not as yet taken place, the Election Commission
was legally empowered under Art.218(3) to exercise its powers pre-emptively in order to avoid a
violation of these standards---Election Commission was fully empowered by Art.218(3) of the
Constitution to make such orders as in its opinion were necessary for ensuring that the election
was fair, honest etc.---Election Commission enjoyed 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 Art.218(3) were met.
Syed Qaim Ali Shah's case PLD 1991 Jour. 41 and Mst. Qamar Sultana v. Public at Large 1989
MLD 360 ref.
 
(p) Constitution of Pakistan---
 
----Arts. 218(3) & 220---Representation of the People Act (LXXXV of 1976), Preamble---
Election Commission---Power and responsibilities---Scope---Representation of the People Act,
1976, vested the Election Commission with the responsibilities and powers to regulate and check
intra-party affairs and actions taken by candidates and parties in anticipation of and on Election
Day; to resolve all election disputes; to declare the election void, and to award punishments for
violating relevant election laws---Article 220 of the Constitution also directed the Federal and
Provincial machinery to assist the Election Commission in fulfilling its constitutional
responsibilities---Election Commission was
entrusted with exclusive, broad and extensive powers to attend to
all issues related directly and ancillary to the election process.
 
(q) Constitution of Pakistan---
 
----Art. 218(3)---Representation of the People Act (LXXXV of 1976), S.103(a) & (c) , 78, 79,
80, 80-A, 81 & 83---Election Commission--- Duty to ensure fair elections---Implication---
Cognizable activities---Scope---Section 103(a) of the Representation of the People Act, 1976,
instructed the Election Commission to ensure a "fair election", which implied that large scale
malpractices including coercion, intimidation and pressures, prevailing at the election would
negate the 'fairness' elections were to embody---Sections 78, 79, 80, 80-A, 81 and 83 of the
Representation of the People Act, 1976, specified activities that the Election Commission could
regulate and check under Art.218(3), but section 103(a) of the Representation of the People Act,
1976 substantially enhanced said defined spectrum of cognizable activities and reinforced the
obligation to check them---Section 103(c) of the Act, empowered the Election Commission to
issue instructions, exercise its powers and make orders to effectuate the said standard.
 
(r) Constitution of Pakistan---
 
----Art. 218(3)---Election Commission---Independence of---Significance for democracy---
Scope---In the parliamentary system of government a constitutionally independent and
empowered Election Commission rested as one of the foundational stones of a democratic setup.
 
(s) Constitution of Pakistan---
 
----Art. 218(3)---Representation of the People Act (LXXXV of 1976), S.107---Election
Commission---Power to make rules---Scope---Independence of the Election Commission---
Scope---By virtue of S.107 of the Representation of the People Act, 1976, the Commission
could, with the approval of the President, make rules for carrying out the purposes of the said
Act, which further reinforced the independence with which the Commission was to exercise its
powers---No restriction existed on the Commission to frame rules with the approval of the
President, to ensure that the elections were conducted fairly, honestly, justly and in accordance
with law and that corrupt practices were guarded against.
Sh. Rashid Ahmed v. Federation of Pakistan PLD 2010 SC 573 ref.
 
(t) Constitution of Pakistan---
 
----Arts. 218, 213 & 222---Election Commission/Chief Election Commissioner---Abridgment of
powers---Effect---Majlis-e-Shoora could promulgate law to regulate the electoral laws, but any
law which had the effect of abridging any of the powers of the Commissioner or the Commission
would not find support in the law.
 
(u) Constitution of Pakistan---
 
----Art. 218---Election Commission---Effective discharge of responsibility---Significance---
Scope---Shortfall in effective discharge of responsibilities---Effect---Was of utmost importance
that the Election Commission executed its functions and discharged its responsibilities
effectively, efficiently and in letter and spirit---By fulfilling its mandated duties and
responsibilities, the Election Commission essentially gave birth to a body/institution of the
nation, called the Parliament---Effective fulfillment and honest discharge by the Commission of
its responsibilities would lend greater legitimacy to an elected democratic government and give
effect to its constitutional mandate, therefore, it was imperative that the Election Commission
employed its extensive powers to regulate the election process---Any shortfall in the discharge of
its responsibilities would violate express dictates of the Constitution, devastate the efficacy of the
Constitutional Order and the envisioned operation of the State.
Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 ref.
 
(v) Constitution of Pakistan---
 
----Art. 51(6)(a)---Election of members of the National Assembly---Constitutional dictate---
Scope---Article 51(6)(a) of the Constitution declared that the representatives of the people "shall
be elected by direct and free vote, in accordance with law", which identified 'elections' as the
first and an integral step in effectuating the said constitutional dictate.
 
(w) Representation of the People Act (LXXXV of 1976)---
 
----Ss. 49 & 50---Constitution of Pakistan, Arts. 218(3) & 184(3)---Constitutional petition under
Art.184(3) of the Constitution concerning
election laws and prevailing electioneering and campaigning practices---Laws pertaining to
regulation of election expenses---Adequacy---Monitoring of election expenses by the Election
Commission---Directions by Supreme Court to devise expenditure monitoring mechanism---
Practice of filing false returns of election expenses---Effect---Constitution and the election laws
of Pakistan provided a comprehensive and adequate mechanism for regulating election expenses
by enumerating different offences, penalties and procedures for a breach thereof but provisions
and Articles regulating the same were not adhered to, both in letter and in spirit, therefore, it was
observed by the Supreme Court, that all said laws should be strictly complied with by all the
relevant parties--- Supreme Court further observed that although the account of election
expenditure was required to be submitted within thirty (30) days of the declaration of the result,
the monitoring had to be done on a regular basis during the campaign period because after the
campaign was over, it became difficult to get any evidence of election expenditure; that to
overcome the phenomenon of filing of false returns of election expenses, the Election
Commission must monitor election expenses from the day the holding of election was notified;
that all expenses incurred in carrying out any election related activity, were legally required to be
accounted for and it was precisely because of the failure to account for the same that election
expenses incurred by each candidate ran into millions of rupees and exceeded the prescribed
ceiling, and that all expenditure over and above the prescribed ceiling qualified as corrupt
practice--- Supreme Court directed the Election Commission to exercise its rule making power to
formulate procedures to monitor election expenses and deal with the corrupt practices committed
in the election process in accordance with law; to ensure that the election was held justly,
honestly and in accordance with law; to devise an expenditure monitoring mechanism, i.e.
monitoring cell, surveillance system, media certification, etc., to monitor the election expenses,
be they for the National Assembly, Senate, Provincial Assemblies or the Local Bodies; to hold
meetings with the candidates and apprise them of the relevant
laws/rules, receive from them statements of expenses on weekly basis by engaging election staff
and carry out random inspection at different places; to enter all transactions relating to election
expenses into with General Sales Tax (GST) registered firms/persons;
to ensure that a candidate accounted for all the
expenses immediately after the election was over, and to
constitute election expenditure monitoring centers/teams to monitor day-to-day election expendit
ure incurred by the candidate.
Javaid Hashmi's case PLD 1989 SC 396; Rananjaya Singh v. Baijnath Singh AIR 1954 SC 749;
Kanwar Lal Gupta v. Amar Nath Chawla AIR 1975 SC 308 = 1975 SCR (2) 269 ref.
 
(x) Representation of the People Act (LXXXV of 1976)---
 
----S. 49---Constitution of Pakistan, Arts.218(3) & 184(3)---Constitutional petition under
Art.184(.3) of the Constitution concerning
election laws and prevailing electioneering and campaigning practices---Restriction on election
expenses---Scope---Practice of taking out massive car rallies and use of expensive vehicles for
transporting voters to and from polling stations---Effect and legality of such practices---By
performing said practices candidates and parties end up incurring exorbitant expenses and exceed
the ceiling prescribed by S.49 of the Representation of the People Act, 1976---Said practices also
created a nuisance for the ordinary citizens and caused discomfort to the sick and students---Such
rallies should not be allowed to travel long distances except if they had pre-arranged corner
meetings at specific designated places, and such meetings should be notified to the ordinary
public by the local administration, which must ensure that all candidates were accommodated---
Supreme Court observed that substantial expenditure incurred in hiring and using transport had
never been adequately monitored by the Election Commission and directed the Election
Commission to take account of all expenditures incurred in the course of campaigning for
activities that were directly and indirectly related and ancillary to the election process; to
facilitate the voters by increasing the number of polling stations appropriately throughout the
country so that the polling stations were not at a distance of more than two kilometers from the
place of residence of voters; to take into consideration the suggestions made during the present
proceedings and ban all private transport on Election Day; to consider alternative arrangement of
transporting voters by vehicles, owned, rented or affiliated with the Election Commission, and to
widely advertise the routes of such vehicles in the print and electronic media for information of
the general public.
 
(y) Representation of the People Act (LXXXV of 1976)---
 
----Ss. 84 & 85---Constitution of Pakistan, Arts. 218(3) & 184(3)---Constitutional petition under
Art.184(3) of the Constitution concerning
election laws and prevailing electioneering and campaigning practices---Prohibition of public
meetings and canvassing in or near polling stations---Scope---Practice of camping in vicinity of
polling stations and handing over of 'perchis' to the voters---Effect and legality of said
practices---By performing said practices the candidates, through their polling agents and
supporters, influenced the voters and compromised the objectivity with which they were to cast
their vote---Establishing camps near the polling stations on polling day and spending substantial
amounts to canvass the voters to vote was clear violation of S.84 of the Representation of the
People Act, 1976, on part of the candidates/supporters---Supreme Court observed that in order to
ensure strict compliance with S.84 of the Representation of the People Act, 1976, the Election
Commission might manage to dispatch extracts from the voters' list in the name of one or more
persons living in a house much before the polling day by post, or to save the postage by annexing
such extracts with any of the utility bills; that National Database and Registration Authority
(NADRA) might be deputed to furnish details of the voters at their residences, which exercise
was required to be completed at least seven (7) days before the polling day, and would facilitate
a voter to exercise his right of franchise independently with full application of mind and without
influence from the candidate or his supporters, and that if need be, instead of involving
employees of Provincial Governments, the employees of Federal Government/ autonomous
organizations/agencies, including the armed and para-armed forces might be instructed to carry
out stipulated functions at the polling stations.
 
(z) Constitution of Pakistan---
 
----Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution
concerning election laws and prevailing electioneering and campaigning practices---
Fair and transparent election---Significance---Fair and transparent election rested at the heart of a
democratic system, therefore, any effort which cultivated a complimentary political culture
should be encouraged.
 
(aa) Representation of the People Act (LXXXV of 1976)
 
----S. 83A---Constitution of Pakistan, Arts. 218(3) & 184(3)---Constitutional petition under
Art.184(3) of the Constitution concerning
election laws and prevailing electioneering and campaigning practices---Affixation of posters,
hoardings or banners, wall chalking and use of loud speakers---
Enforcement of provisions against said practices---Scope--- Supreme Court directed that District
(Zila) Nazim and the Returning Officer should ensure the effective implementation of provisions
provided in S.83A(1) of the Representation of the People Act, 1976---Supreme Court observed
that concerned authorities had never taken any steps to enforce the said provisions, therefore
directed the Election Commission to take all necessary steps to ensure compliance and
enforcement thereof.
 
(bb) Constitution of Pakistan---
 
----Art. 184(3)---Representation of the People Act (LXXXV of 1976), Preamble---Constitutional
petition under Art.184(3) of the Constitution concerning election laws and prevailing
electioneering and campaigning practices---Practice of door to door campaigning---
Significance---Door-to-door campaigning was an effective means of establishing communication
between the candidate and the voter---Such a campaign strategy demonstrated the candidate's
resolve, commitment and level of interest in his/her community.
 
(cc) Constitution of Pakistan---
 
----Arts. 218 & 184(3)---Representation of the People Act (LXXXV of 1976), Preamble---
Constitutional petition under Art.184(3) of the Constitution concerning election laws and
prevailing electioneering and campaigning practices---Measures to achieve the objective of fair,
free, just and honest elections---Scope---Supreme Court directed the Election Commission to
frame rules and issue instructions to provide legal sanction to different measures, namely, door-
to-door campaign, manifesto, canvassing on State television and radio, and candidate-voter
interaction/debates, etc. as appropriate and implement the same.
 
(dd) Constitution of Pakistan---
 
----Arts. 218(3), 219(a), 222(c) & 184(3)---Constitutional petition under Art.184(3) of the
Constitution concerning election laws and prevailing electioneering and campaigning practices---
Preparation/revision of electoral rolls---Scope---Supreme Court observed that fair, free, honest
and just elections were sine qua non for strengthening of democracy and to achieve said goal,
accurate preparation/revision of electoral rolls was immediately required to be undertaken by the
Election Commission through credible and independent agencies, and that conventional ways
and means of merely depending upon National Database and Registration Authority (NADRA)
alone or other similar bodies had to be discontinued immediately---Supreme Court directed the
Election Commission to undertake door-to-door checking of voters' lists and if needed, complete
the process of updating/revision of the electoral rolls by engaging the Army and the Frontier
Corps.
Imran Khan v. Election Commission of Pakistan (Constitution Petition No.31 of 2011 and Ms.
Banazir Bhutto v. Federation of Pakistan (Constitution Petition No.45 of 2007) ref.
 
(ee) Representation of the People Act (LXXXV of 1976)---
 
----S. 67(1A)---Constitution of Pakistan, Arts. 218(3) & 184(3)---Constitutional petition under
Art.184(3) of the Constitution concerning
election laws and prevailing electioneering and campaigning practices---Election Tribunal---
Delay in disposal of election petitions---Section 67(1A) of the Representation of the People Act,
1976, mandated that an Election Tribunal must adjudicate a petition within three (3) months, but
said provision in the observation of the Supreme Court was violated more often than not,
therefore, there was a need to adhere to the procedure laid down for resolving election disputes
expeditiously and ensure completion of whole process including appeals within 120 days---
Supreme Court further observed that corrective measures were required to be taken by the
Election Commission to ensure that the election disputes were resolved at the earliest, and that
the Election Commission might also consider establishing a panel of lawyers well conversant
with election laws at the State expense to provide free legal services to the marginalized
segments of society and take other steps it considered appropriate.
 
(ff) Constitution of Pakistan---
 
----Preamble, Arts. 51 & 184(3)---Representation of the People Act (LXXXV of 1976),
Preamble---Constitutional petition under Art.184(3) of the Constitution concerning election laws
and prevailing electioneering and campaigning practices---Scope of Art.51 of the Constitution---
Election of members of the National Assembly---Low voter turn-out---Effect---Candidates
securing an insignificant majority of the votes casted, elected as representatives of the people---
Effect---Article 51 of the Constitution was an embodiment of the democratic spirit of the
Constitution and prescribed the mechanism for the selection and establishment of a
democratically elected government---Article 51 of the Constitution entitled every person to cast
their vote if they met the requirement mentioned therein, which enabled all eligible individuals to
participate in the political process of the country and to thereby, select as well as set a democratic
government in motion---Constitutional dictate of establishing a democratic government was
realized through the operation of Art.51 of the Constitution and any failure or shortfall in the
operation thereof would substantially undermine the legitimacy of an elected democratic
government and would also have the effect of isolating the electorate from the democratic
process and render the elected government, democratic in form, but not in spirit---Supreme Court
observed that individuals who stood elected by securing an insignificant majority of the votes
casted, could not legitimately claim to be the representative of the people; that an election which
suffered from a poor voter turnout could not be said to be effectuating the true spirit of
democracy, as envisioned by the Constitution, and that necessary steps must be taken to ensure
that the Constitutional dictate of nurturing and being governed by democratic ethos was
honoured in letter and spirit.
 
(gg) Constitution of Pakistan---
 
----Preamble, Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the
Constitution concerning election laws and prevailing electioneering and campaigning practices---
Compulsory voting---Significance and effect---Supreme Court observed that the Election
Commission was obliged to ensure that all elections witnessed a substantial participation of the
electorate, therefore, by making voting compulsory and attaching sanctions for its violation, the
Election Commission and/or the appropriate body could resolve the problem of low voter turn-
out and bring existing election-related processes in line with the dictates of the Constitution---
Supreme Court further observed that all necessary steps must be taken to make voting
compulsory in Pakistan as early as possible, as such an initiative would have the effect of
strengthening democracy by giving effect to the constitutional mandate that the Government
shall be run by the chosen representatives.
 
(hh) Representation of the People Act (LXXXV of 1976)---
 
----S. 42---Constitution of Pakistan, Preamble & Art. 184(3)---Constitutional petition under
Art.184(3) of the Constitution concerning
election laws and prevailing electioneering and campaigning practices---"First Past the Post"
(FPTP) voting system---Drawbacks---According to "First Past the Post" (FPTP) system of
election, the candidate securing the highest number of votes was the winner, which meant that
the winning candidate did not necessarily receive an absolute majority of all votes casted---
Members of the Parliament who claimed themselves to be representatives of people, according to
the "First Past the Post" (FPTP) voting system, might not command the majority of the votes
registered and polled, therefore, they might not genuinely represent their electorate---Such
phenomenon was perpetuated by defective electoral laws, especially S.42 of the Representation
of the People Act, 1976, which was based on "First Past the Post" (FPTP) voting system---
Supreme Court observed that in order to make the electoral system democratic and representative
the only remedy laid in the adoption of re-polling (runoff) in those electoral constituencies where
there was no clear winner who had secured at least or more than 50% of the votes polled, and
that in the fresh polling between the two leading candidates anybody who secured majority votes
should be declared successful.
Mir Salim Khan Khosa v. Chief Election Commissioner 2002 SCMR 109 ref.
 
(ii) Words and phrases---
 
----"Majority votes"---Definition.
Black's Law Dictionary, 6th Edn., p.955 ref.
 
(jj) Constitution of Pakistan---
 
----Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution
concerning election laws and prevailing electioneering and campaigning practices---
Ballot papers---List of candidates' names---"None of the above" option---Effect and scope---
Supreme Court observed that if the vote was an expression of the electorate's choice, then the
electorate should also be given the option to express their dissatisfaction with the candidates;
that a 'None of the above' option would serve to give effect to such purpose; that with a 'None of
the above' option, the electorate would be in a position to claim greater ownership of their
constituencies and would be able to exercise their own decision-making powers by nominating
appropriate candidates, and that the concerned authority should consider adopting the said
option.
 
(kk) Constitution of Pakistan---
 
----Arts. 16, 17, 19, Parts II [Arts.7 to 40] & III [Arts.41 to 100], Arts.218(3) & 184(3)---
Representation of the People Act (LXXXV of 1976), Preamble---Constitutional petition under
Art.184(3) of the Constitution concerning
election laws and prevailing electioneering and campaigning practices---Supreme Court disposed
of the petition with the observations that freedom of association, as enunciated by Art.17 of the
Constitution, conferred a Fundamental right on every individual to partake in the political
governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and
advance said right through a democratic system; that 'freedom of assembly' (Art.16 of the
Constitution) and 'freedom of speech' (Art.19 of the Constitution) also served to realize the same
constitutional imperative; that by guaranteeing the observance of 'principles of democracy' and
mandating that the "State shall exercise its powers and authority through the chosen
representatives of the people", the Constitution instructed that the authority to govern be
exercised by and through a representative and democratic government; that conferment of such
authority had been framed with an ardent dedication 'to the preservation of democracy' and,
therefore, encapsulated it as one of its core values; that Part II and III of the Constitution
cemented 'democracy' as the chosen system of the people and a fundamental constitutional
dictate; that the Constitution mandated the Election Commission to organize and conduct the
election and to make such arrangements as were necessary to ensure that the election was
conducted honestly, justly, fairly and in accordance with law, and corrupt practices were guarded
against; that the Representation of the People Act, 1976 vested the Election Commission with the
responsibilities and powers to, inter alia, regulate election expenses, provide for offences,
penalties and procedures in case of breach of conditions relating thereto, resolve all election
disputes, declare the election void, etc.; that the constitutional requirement to hold elections
fairly, freely, honestly, justly and in accordance with law obligated the Election Commission to
exercise all powers vested in it to the best of standards and norms; that public power was a
sacred trust, which was to be exercised fairly, justly, honestly and in accordance with law and
wherever any discretionary power was vested in a public authority or functionary, that too, was
to be exercised to achieve the goal of fair, free, honest and just discharge of sacred trust; and that
the impugned election practices and processes were cognizable by the Election Commission and
were required to be dealt with in accordance with the Constitution and the law.
 
(ll) Constitution of Pakistan---
 
----Arts. 218(3), 16, 17, 19 & 184(3)---Representation of the People Act (LXXXV of 1976),
Preamble---Constitutional petition under Art.184(3) of the Constitution concerning election laws
and prevailing electioneering and campaigning practices---Supreme Court directed that all the
election laws should be strictly implemented by the Election Commission in the discharge of its
constitutional mandate under Art.218(3) of the Constitution, Representation of the People Act,
1976, and other laws/rules; that Election Commission was empowered to check not just illegal
actions relating to the election (violating the limits set for campaign finance, etc.) or corrupt
practices (bribery, etc.), but was also empowered to review all election activities, including
"Jalsas", "Jaloos", use of loudspeakers, etc. for their effects on the standards of 'fairness, justness
and honesty' that elections were expected to meet; that the Election Commission was also
empowered to take pre-emptive measures to ensure that the spirit of democracy and 'fairness,
justness and honesty' of elections was fully observed; that the Election Commission must
undertake monitoring of the election expenses from the day the holding of election was notified;
that a candidate must account for all the expenses immediately after the election was over; that
the Election Commission must hold meetings with the candidates and apprise them of the
relevant laws/rules, receive from them statements of expenses on weekly basis by engaging
election staff and carry out random inspection at different places; that all transactions relating to
election expenses should be entered into with General Sales Tax (GST) registered firms/persons;
that the number of polling stations might be increased appropriately throughout the country so
that the polling stations were not at a distance of more than two kilometers from the place of
residence of voters; that the Election Commission might take into consideration the suggestions
made during the present proceedings, including the provision of official transport to the voters,
but in no case, should it allow the candidates to hire/use private transport on election day; that
where arrangement for transport was made by the Election Commission, the routes of such
transport should be widely advertised in the print and electronic media for information of the
general public; that with regard to handing over of "Perchis" to the voters at election camps, the
Election Commission must take steps to provide the requisite information to the voters by other
means; that establishing of camps near the polling stations should be banned immediately; that
the Election Commission might manage to dispatch extracts from the voters' list in the name of
one or more persons living in a house at least seven (7) days before the polling day by post, or to
save the postage by annexing such extracts with any of the utility bill; that only those election
campaign activities should be permitted, which on the one hand fulfilled the purpose of the
election campaign, and on the other were within the reach of the common man; that the Election
Commission should encourage certain activities based on their merit, namely, door-to-door
campaign, manifesto, canvassing on State television and radio, and candidate-voter
interaction/debates, etc.; that instead of involving the employees of the Provincial Governments,
the employees of Federal Government/ autonomous organizations/agencies, including the armed
and para-armed forces might be instructed to carry out stipulated functions at the polling stations;
that the Election Commission was expected to take effective steps in regard to computerized
balloting at an appropriate time; that the Election Commission should undertake door-to-door
checking of voters' lists and complete the process of updating/revision of the electoral rolls by
engaging Army and the Frontier Corps to ensure transparency, if need be; that the Election
Commission had to ensure that the election disputes were resolved at the earliest, for which it
might consider establishing a panel of lawyers well conversant with election laws at the State
expense to provide free legal services to marginalized segments of society; that all necessary
steps must be taken to make voting compulsory as early as possible; that the voting system of
'First Past the Post' violated the principle of majority, therefore, the Election Commission might
explore ways and means to introduce appropriate system of election including 'run-off election'
and 'none of the above options' to ensure true representation of the people and rule of the
majority, and that the Election Commission should frame rules and issue instructions to provide
legal sanction to all said measures and implement the same to achieve the ultimate objective of
fair, free, just and honest election.
Abid Hassan Minto, Senior Advocate Supreme Court, Bilal Hassan Minto, Advocate Supreme
Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.
Dil Muhammad Alizai , DAG, Syed Safdar Hussain Shah, Advocate-on-Record, Syed Sher
Afgan, D.G. (Elections) and M. Nawaz, Director for Election Commission of Pakistan.
Khalid Khan, Advocate Supreme Court for ANP.
Dr. Farogh Naseem, Senior Advocate Supreme Court for MQM.
Dr. Khalid Ranjha, Senior Advocate Supreme Court and Syed Nayab H. Gardezi, Advocate
Supreme Court for PML(Q).
M. Rafique Rajwana, Advocate Supreme Court and Naseer Ahmed Bhutta, Advocate Supreme
Court for PML(N).
Hamid Khan, Senior Advocate Supreme Court, Waqar Rana, Advocate Supreme Court and
M.S.Khattak, Advocate-on-Record for PTI.
Taufique Asif, Advocate Supreme Court for JI.
Salman Akram Raja, Advocate Supreme Court assisted by Malik Ghulam Sabir, Barrister Sahar
Asif and Malik Ahsan Mehmood for APP.
Abdul Wahab Baloch, Advocate Supreme Court, Syed Jalal Shah, Advocate Supreme Court and
Raja Abdul Ghafoor, Advocate-on-Record for SUP.
Nemo for other Political Parties.
Amir Ahmed Ali, DC, Ibd. and Syed Muzaffar Ali, Manager (L) NADRA (On Court notice).
Dates of hearing: 9th, 10th, 11th, 12th, 16th, 17th, 18th, 19th and 20th April, 2012.