Daily Times

The honourable Lahore High Court recently gave a landmark verdict reported as Pakistan Legal Digest (PLD) 2018 Lahore page 641 (Habib Akram versus Federation of Pakistan) concerning the impugned Election Act 2017 through which a number of amendments were made in election forms (nomination papers). Through the impugned Election Act 2017, a number of columns in nomination form were omitted.

These include the educational qualification of candidates, income tax and agricultural tax payments made by the candidate, liabilities of dependents(only column of liabilities of dependent children existed in the new form after the amendment in 2017 but column regarding liabilities of other dependents were excluded); dual nationality; expenditure undertaken by the candidate; pending criminal cases against the candidate; and defaulting the payment of loans, government dues, or utility bills.

It was ably argued by the learned counsels Mr Saad Rasool and others that these columns should have been included so that a voter can make an informed decision. The petitioner’s counsels also argued that a voter has a fundamental right to know the credentials of a candidate and inclusion of such columns would lead to informed decision-making keeping in consideration Article 19A of the Constitution of Pakistan. It was also pointed out that the aforementioned columns were included in 2013 elections nomination forms but in 2018 these columns have been deliberately omitted through Election Act 2017, which would adversely affect the transparency of elections. The petitioner’s counsels also contended that the parliament could not impinge upon the powers of Election Commission of Pakistan which has the prerogative to conduct elections. Hence the inclusion and deletion of columns and its preparation is the sole prerogative of the ECP and not the parliament.

The court partly allowed the petitions only to the extent that the omitted columns would be included in the nomination form as the court accepted the argument of the petitioners that right to know such information would lead to the informed decision-making process and would make the entire election process more fair and transparent. The court held that the right to freedom of political expression includes the freedom to seek, receive and impart information and ideas to develop informed choices.The court held that the voter has the right to know basic information about the candidate along with relevant information to establish the credibility and honesty of a candidate.

The court also took cognisance of the fact that in 2013 there was a column of liabilities of dependents which has now been restricted only to dependent children meaning thereby that in the new form the candidate had to disclose the liabilities of only dependent children, not his wife or any other dependent.

The court held that as per the constitutional mandate a person shall be disqualified from being elected or chosen as a member of parliament if he, his spouse or dependents are in default of a loan of an amount of two million or more from any bank for more than one year or if he has gotten that loan written off.

The constitution provides that the loan can be in the candidate’s own name or the name of his spouse or any other of his dependents. In the same way if a person or his spouse or any of his dependents are defaulting in their dues to the government, utility expenses, telephone, electricity, gas and water charges at the time of filing of the nomination papers, he or she stands disqualified in terms of Article 63(i)(o) of the Constitution. However, as per the Act, a candidate is to make a declaration concerning his dependent children. Effectively the phrase “dependent children” has diminished the scope of the constitutional requirement to make a declaration with regards to “dependents”, be they children or any other relative who can include parents, siblings or any other dependents. A bare reading of the constitution shows that the requirement for the declaration is of a spouse or any dependent. There can be no cavil with the legal sanctity of the constitutional mandate and the fact that all laws must be in consonance with the constitution. By requiring the statement of assets and liabilities for dependent children, the legislature has in fact ignored the constitutional mandate.

In a recent petition against the Election Act 2017, it was argued that a voter has the fundamental right to know quite a lot about about a candidate, including some details that many people would consider personal

The honourable court ruled that the use of the phrase “dependent children” instead of “dependent” in Sections 60, 110 and 137 of the Election Act 2017, held merit as the said sections are in clear derogation of the constitutional mandate. Under the circumstances, the words “dependent children” shall be read down such that it will be read in conformity with the constitutional requirement of Article 63(1)(n) and (o) of the Constitution. Similarly, the court held that the omission of a column of dual nationality is also in derogation of Article 63 of the Constitution. These observations have also been upheld by the supreme court as well in appeal. The decision of the honourable supreme court has been reported in PLD 2018 SC page 678, Speaker National Assembly vs Habib Akram.

As far as the legislative competence was concerned, the Honourable Lahore High Court did not agree with the contention of the petitioners who argued that the parliament could not legislate with respect to the election matters including nomination forms as according to them it was the sole prerogative of the election commission. The court declared that the parliament had the legislative competence on the matters regarding election including nomination forms. As per the court order, the legislative competence of parliament is clear from reading Article 222 of the Constitution which provides that parliament can make all laws with respect to elections and include laws related to the conduct of elections, but it cannot make law which effectively takes away or abridges any power of the commissioner or the ECP. The honourable supreme court is yet to give its finding on this issue regarding legislative competence as the appeal is still pending.

The aforementioned verdict of Lahore High Court, nevertheless, is a reflection of the fact that the court adhered towards legal realism theory which explains that the judge when deciding an issue considered not only legal rules but also social norms and other policy considerations, unlike legal formalism theory.

The writer is a human rights activist, constitutional lawyer and a teacher

Published in Daily Times, July 19^th 2018.