Sardar AYAZ SADIQ Versus ELECTION COMMISSION OF PAKISTAN

UMAR ATA BANDIAL C J.-- -The order passed by the learned Election Commission of Pakistan ("ECP") on 18-6-2013 ("impugned order") is challenged in this petition by the returned candidate in the election of National Assembly seat NA-122, Lahore-V. The impugned order allows the runner up in the said election ("respondent No.3") to apply to the Returning Officer of the said constituency to seek public inspection of the election record under section 44 of the Representation of the People Act, 1976 ("ROPA") in the following words:

"The applicants are, therefore, allowed to seek public inspection of the documents mentioned in the preceding paragraphs by making application to the Returning Officer, who has the custody of the record pertaining to the constituencies, mentioned in the opening paragraphs."

2. The petitioner has challenged the impugned order before the Court on the ground that the learned Returning Officer ("R.O.") for the said constituency has become functus officio after the issuance of the notification of election result. Also that the election record pertaining to NA-122 is not in the custody of the R.O. but is with the ECP under Section 44 ROPA. Therefore, ECP should supervise and conduct the said inspection.

3. On the merits of the relief sought by the respondent No.3, the petitioner frankly concedes the same. However, it is contended that the said process of inspection should be conducted and supervised competently by a person having lawful authority. That the respondent No.3 has challenged the election result of NA-122 before the learned Election Tribunal. The relief of inspection of election record can competently be granted by the said Tribunal in exercise of its specific power conferred under section 46 ROPA. The respondent No.3 should seek that relief from the Election Tribunal. It is also pointed out that in any event the impugned order does not direct the R.O. to conduct the public inspection. It merely allows the respondent No.3 to apply to the R.O. for the said relief.

4. Learned counsel for respondent No.3 have opposed the petition firstly, on the ground that the impugned order passed by ECP is clear in its terms for allowing the prayer for public inspection of documents made by respondent No.3 albeit subject to an application for the said relief being first filed before the R.O. Therefore, rather than approaching the High Court, the petitioner should first avail his right of objection before the R.O. Secondly, on the jurisdictional objection raised by the petitioner, it is submitted that under section 5(2) ROPA, once the R.O. is appointed, he becomes bound by the ECP's orders, including, the impugned order. That under section 7(5) ROPA a District Returning Officer is bound to perform such other duties and functions as may be entrusted to him by ECP. Also the ECP has power under section 104 ROPA and sections 6 and 9(b) of the Election Commission Order, 2002 ("Order") to issue directions or orders as may be necessary for performance of its functions and duties for doing complete justice in any matter pending before it.

5. It is added that in exercise of the power under section 7 ROPA, the ECP has issued a notification dated 26-12-2013 whereby successors-in-office of the R.Os. are directed to perform "all post-election activities under the law till further orders of the Election Commission". Pursuant to the said notification, on 1-1-2014 the ECP has affirmed its earlier order dated 25-7-2013 that the R.O. of NA-124, Lahore-VII ("NA-124") shall arrange inspection of documents requested by a losing candidate in the general election. Finally, it is argued that under section 51 ROPA, the duties and functions of a R.O. extend for a period of one year after the declaration of election result. This provision is made for the inspection of returns and documents of election expenses incurred by contesting candidates in the election. Since the inspection of election record under section 45 ROPA is also a similar exercise, therefore, it is argued that the authority of the R.O. for the desired inspection stretches for the same period of one year after the declaration of election results. Consequently, the R.O. of NA-122 is lawfully authorized to carry out the public inspection of documents in the present case.

6. Learned counsel for the petitioner is supported by the learned Additional Attorney-General in stating that the provisions of Article 220 of the Constitution and section 9 of the order extend the authority of the ECP over all executive authorities in the Federation and the Provinces but not over judicial authorities. This is acknowledged by the ECP in its written statement, filed in Court which denies that the impugned order issues any direction to the R.O. of NA 122. It is specifically pointed out that judicial officers performed election duty pursuant to a decision of the National Judicial Policy Making Committee (NJPMC) dated 17-11-2012 as an exception to the rule laid down in clause A-7 of the National Judicial Policy, 2009 ("NJP") which is reproduced below:

A. Independence of Judiciary

1) ...

2) ...

3)

4)

5)

6) .

7) In future the judiciary would avoid its involvement in the conduct of elections, as it distracts the judicial officers from professional duty and complaints of corrupt practices tarnish the image of judiciary.

The reputation of judiciary is at stake during election due to involvement of vested interests groups, etc in corrupt practices. On the other hand, it also adversely affects the judicial functions of the courts. Even otherwise, the Conduct of General Elections Order 2002, Representation of the People Act, 1976 and Local Government Ordinance 2001 do not contain any provision which requires that the elections are to be held under the supervision of the Judiciary. Therefore, in future, the Judiciary should remain aloof from the process of election to focus on disposal of cases. However, in case of request from the Government, the NJPMC would decide the extent to which and form of help to be extended to Government in the conduct of elections. The judiciary will continue to extend support and cooperation in adjudication of election related disputes/complaints as provided under the law."

7. Section 7(1) ROPA reinforces the principle laid down in the NJP. It contemplates R.Os. of each constituency to be appointed from amongst officers of the Federal Government, Provincial Governments, corporations controlled by any such Government and local authorities. The appointment of judicial officers as R.Os. in any election is outside the contemplation of law. Consequently, the involvement of judicial officers in the performance of election duty pursuant to the NJPMC decision dated 11-11-2013 should be resorted sparingly. Even otherwise, performance of election duty is necessarily confined within certain boundaries. The Hon'ble Supreme Court has held the election process continues until the notification of election result. This was observed in Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396) which is cited with approval by the Hon'ble Supreme Court in Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681).

8. On the contention that the obligations of the R.O. under ROPA continue for a period of one year after the declaration of the election result, learned counsel for the petitioner submits that there is a huge difference between object and substance of section 51 and of section 44 of ROPA. Under section 51 ROPA, the R.O. is under a duty to keep the record of candidates' returns of election expenses and documents with himself whereas under section 44(3) of ROPA, the election record is retained by the Commission for a period of one year from the date of its receipt unless otherwise directed by a Tribunal. Apart from the lack of any statutory mandate for a R.O. to conduct public inspection of record under section 44 ROPA the nature, scope and extent of the exercise involved in the two types of inspections are vastly dissimilar. Consequently, it is explained that no parallel can be drawn between the two different types of inspections.

9. In so far as the notification dated 26-12-2013 by ECP is concerned, it is explained that this notification pertains only to post-election activities contemplated under the law. It cannot extend to activities that are not specifically assigned to a R.O. under the law. With respect to the order passed by the ECP on 1-1-2014, calling upon the judicial officer, who is successor in the Court of the notified R.O. in NA-124, to allow inspection of the election record, it is explained that the present objection raised by the petitioner was not at that time kept in view by the ECP. On the other hand, in the present case, the ECP has consciously applied its mind to the question and has filed in Court two statements dated 22-10-2013 and 9-5-2014 wherein it is specifically stated that the R.Os. who are from the judiciary cannot be treated as executive authorities falling within the ambit of Article 220 of the Constitution, section 5(2) of the ROPA or Article 5(3) of the Order. It is further stated that the impugned order passed by ECP does not issue any directions to the R.O. of NA-122.

10. Heard. Several judicial verdicts about the autonomy, authority, independence and sanctity of the ECP have been issued by the superior courts of the country. Most recently, in two judgments given in Workers' Party's case (ibid) and Civil Appeal No.38-2014 titled Province of Sindh through Chief Secretary etc. v. MQM through its Deputy Convener etc. announced on 20-3-2014, the Hon'ble Supreme Court has dilated upon the extensive responsibilities of the ECP for ensuring that the election is conducted honestly, justly, fairly and in accordance with law. For the discharge of its duties, the ECP must possess autonomy, authority, independence and sanctity to ensure that the election process conducted by the ECP enjoys respect and credibility. A whole chapter in Part-VIII of the Constitution is devoted to the powers of the Chief Election Commissioner and the ECP.

11. The ECP has filed its statement before the Court which takes the position that officers of the judiciary do not fall within the ambit of executive authorities that are bound to act in accordance with the orders and directions of the ECP. In the present case, the notified R.O. NA-122, Lahore who conducted the election was the Presiding Officer in the Court of Addl: Sessions Judge, Lahore. His successor Presiding Officer in that Court is now being requested by the respondent No.3 to conduct inspection of the election record of NA-122 under section 44 ROPA. Given that the said Addl: Sessions Judge, Lahore is the successor in the Court of the notified R.O., the question is whether the stand taken by the ECP in its statement filed in the Court, relieves the successor Addl: Sessions Judge from hearing the application of the respondent No.3 under section 44 ROPA.

12. The said question probes the duration of involvement of judicial officers in the performance of election duty for the ECP. The participation of the Punjab District Judiciary in the conduct of the General Election, 2013 in the province was an exceptional step taken in the public interest on the request of the Chief Election Commissioner of Pakistan. Such participation is not contemplated in the Constitution and the law; it was rendered in pursuance of a one time relaxation of the National Judicial Policy, 2009 (as amended). How long should participation of judicial officers in the post-election process continue is not merely a matter of interpretation of the provisions of ROPA but also concerns the necessity to involve judicial officers in the discharge of administrative work of the ECP. In the present case, the desired involvement of a judicial officer under section 44 ROPA is sought for the conduct and supervision of public inspection of the election record of NA-122, Lahore V.

13. The Constitution in Article 213 to Article 226 defines the purposes, powers and authority of the ECP. The foundational constitutional mandate is supplemented by the provision of ROPA and the Order. Judicial pronouncements have interpreted the extensive powers of the ECP in the light of its mandate contained in Article 218(3) of the Constitution which lays down the following:

"It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against."

In the case of Province of Sindh v. MQM (ibid) the Hon'ble Supreme Court has quoted with approval the following principles laid down in the Workers' Party case (ibid) as follows:

"42. 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 ..

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...." (emphasis supplied)

An illuminating and relevant discourse on the subject of ECP's role and authority is also rendered by Hon'ble Supreme Court in paragraph 64 of Province of Sindh judgment. This passage is re-produced below:

"64. In terms of section 3 of the Sindh Local Government Act, the Provincial Government has been empowered to delimit the constituencies of the Local Government in Sindh. Being one of the fundamental steps to hold fair elections, it has to be carried out by a body which is neutral and credible. That is why the task of delimitation of constituencies for National and Provincial Assemblies has been entrusted to the Election Commission of Pakistan (Delimitation of Constituencies Act, 1974). Now that the task of holding elections to local governments has been entrusted to Election Commission of Pakistan by a constitutional amendment (Article 140A), the constitutional provision relating to delimitation of constituencies has to be accorded purposive construction. In these circumstances we are persuaded to hold that the power of Majlis-e-Shoora to provide by law for "the delimitation of constituencies by the Election Commission" would include the delimitation of constituencies of local government."

14. The gigantic task of the ECP necessitates the vesting of vast powers in it to ensure transparency and fairness in the conduct of the elections. In the exercise of its powers and authority, the ECP possesses autonomy in decision making and independence in the formation of its judgment about suitable redress, solutions and remedies. The Courts are there to enforce the constitutional safeguards and preserve and protect the institutional imperatives of the ECP unless there is a case involving illegality or injury to public interest.

15. Given the background and whilst promoting the lawful exercise of authority by the ECP, this Court is not inclined to sit in judgment on the view expressed by ECP in its written statement filed in Court which relies on Article 220 of the Constitution. Therefore, the points urged by the parties must first receive the consideration of the ECP. This is because the matter involves not just a question of law but also the enforcement of ECP's policy with regard to the appropriate remedies for relief claimed by parties. Be that as it may, the notification by the ECP dated 26-12-2013 under Section 7 ROPA directs successors-in-office of the R.Os. to perform all post-election activities under the law. Whether the ECP considers that a judicial officer should perform the duty of conducting public inspection of election record under section 44 ROPA, as is the meaning attributed by the respondent No.3 to the impugned order, such view should, consistently with ECP's stand taken before the Court, first be shared with this Court for comment and, if so, acceptance. On the other hand, if the ECP is inclined in terms of section 7(1) ROPA to designate, inter alia, an officer of the Federal Government or Provincial Government for conducting the inspection under Section 44 ibid, then in line with its written statement filed in Court, the prayer by respondent No.3 for inspection of election record, which is not opposed by the petitioner, may be implemented by such designated authority.

16. Indeed the foregoing is without prejudice to the lawful and express remedy of the respondent No.3 available before the learned Election Tribunal hearing his election petition. The said remedy under section 45 ROPA empowers an Election Tribunal to direct inspection of the election record. The respondent No.3 may, if so advised, exercise the said option, inter alia, in the light of the concession made by the petitioner before the Court.

17. Before parting with this case, it is appropriate to mention an incident that took place in the Court room on the last date of hearing, namely, 7-5-2014. A crowd of fervent supporters of respondent No.3 had followed their leader to the Court. Although respondent No.3 entered the Court room peacefully but the unchecked enthusiasm of his followers led them to force their entry through the narrow doorway of the Court room. In the process, one of the outer doors of the Court room was unhinged. The decorum of the Court was disturbed by the stir caused and the force used. The proceedings then under hearing by the Court were shifted to the Judge's chamber.

18. The respondent No.3 thereafter left the Court room peacefully and so did his supporters. This case was heard later in the day when respondent No.3 was directed to state his position in writing about the incident that had taken place in the Court room. A statement has been filed in the Court today. It is not signed by respondent No.3 but his learned counsel submits that the respondent No.3 affirms fully its contents and regrets that the incident took place. That the persons who caused the rush at the entrance door of the Court were strangers.

19. The Court believes the submissions made by the learned counsel on behalf of the respondent No.3 because the said respondent both entered and left the Court room peacefully. There was, however, a lack of supervision and counseling of the persons who followed him into the Court room about the solemnity of Court proceedings and courtesies attendant thereto. There is a beautiful verse of the Holy Qura'an that is befitting to the present unintended incident:

(Those who spend (in Allah's Cause) in prosperity and in adversity, who repress anger, and who pardon men; verily, Allah loves Al-Muhsinun (the good-doers). (Sura 3, Al-'Imran, Verse 134.)

20. The above mentioned incident did not intend nor cause any serious harm. Keeping in view the command ordained by Holy Qur'an, the explanation and regret offered by the respondent No.3 suffices to condone breach of the Court's decorum that occurred.

21. Accordingly, in view of what has been observed above, the matter regarding the meaning and effect of the impugned order dated 18-6-2013 is returned to the ECP for elaboration in the light of applicable law. This petition is disposed of in the above terms.

MWA/A-90/L Order accordingl