The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Nawaz Abbasi, J

Constitution of Pakistan(1973), Arts.218, 219, 199 & 225—

At the first instance, we would prefer to examine the question relating to the scope of judicial review of the High Court under Article 199 of the Constitution. This is settled law that unless there are special reasons, the High Court, in exercise of its constitutional jurisdiction, should not interfere and adjudicate in election dispute. The Extraordinary remedy of writ petition can be availed in election matters in exceptional circumstances in a case of grave illegality in which an aggrieved person has no other statutory remedy for redressal of his grievance. The law requires every statutory authority to act within the limits of law and if such an authority exceeds the limits of law or fails to function as per requirement of law and proceeds to pass an order beyond the scope of law and his authority, the High Court, under Article 199 of the Constitution, can declare such an order as without lawful authority and of no legal effect.

The above rule is subject to the exception that if the statutory authority in exercise of jurisdiction within the limits of law, passes an order in discharge of its duty then an aggrieved person can avail alternate remedy before a forum established under the law against such order. The invoking of writ jurisdiction of High Court in such matter for mere reasons that the alternate remedy before the forum concerned cannot be availed for the time being, is not proper. In Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Noshehro Feroz and another 1994 SCMR 1299 this Court held that in election matters, the High Court can entertain a writ petition and exercise jurisdiction in exceptional circumstances if no other remedy is available to an aggrieved person and we without taking any exception to the above judgment hold that jurisdiction of the High Court under Article 199 of the Constitution can certainly be invoked in exceptional cases but mere reason that for the time being no alternate remedy can be availed, is not, as such, a sufficient and valid ground to invoke constitutional jurisdiction of the High Court in a matter in which a constitutional forum or a statutory authority, in exercise of its jurisdiction, has passed a just and proper order. This is consistent view of this Court that mere availability of an alternate remedy may not preclude institution of a constitutional petition as the sub-constitutional law cannot limit or control the jurisdiction of the High Court under Article 199 of the Constitution and this is well established law that the superior Courts, in exercise of constitutional jurisdiction, may set aside the action taken or orders passed in illegal and unlawful manner. The High Court in an election matter, may, in exercise of its jurisdiction under Article 199 of the Constitution, grant an appropriate relief if an aggrieved person, after exhausting sub-constitutional remedies available under the law, has questioned the legality of the order passed by an election authority on a legal question of constitutional importance.

The conduct of elections is exclusive function of Election Commission of Pakistan, a constitutional forum and this function is performed by the Commission as its constitutional duty under Articles 218 and 219 of the Constitution read with sections 103 and 103-AA of the Representation of the People Act, 1976, therefore, the High Court in exercise of its power of judicial review under Article 199 of the Constitution, is not justified to interfere in the orders passed by the Election Commission in the process to ensure fair and transparent election and substitute its own opinion for the opinion of Commission about the matter. This Court in the case of Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 having considered the scope of Article 199 with respect to the election matters has held that interference of the High Court in the election process or election disputes may not be justified.

In consequence to the above discussion, we hold that the scope of interference of the High Court in its jurisdiction under Article 199 of the Constitution in election cases is limited only to the extent of matters which do not exclusively fall within the ambit of jurisdiction of Election Tribunals or Election Commission of Pakistan or in respect of the orders which are coram non judice, without jurisdiction or mala fide. The interference of the High Court in the orders passed by Election Commission of Pakistan in discharge of its duty in terms of Articles 218 and 219 of the Constitution read with sections 103 and 103-AA of Act, 1976, in the normal circumstances, is not justified.

The next question for examination relates to the power of Election Commission of Pakistan under sections 103 and 103-AA of Representation of the People Act, 1976 and the interpretation of these provisions in the light of Article 225 read with Articles 218(3) and 219 of the Constitution and section 52 of the Representation of the People Act, 1976. The plain reading of section 103 read with section 103-AA of Representation of the People Act 1976 would show that Election Commission of Pakistan on the complaint lodged by a candidate or his agent or polling staff or any other person, if finds that in the situation mentioned therein, it would not be possible to ensure fair, just and transparent election in a constituency as a whole or at a particular polling station, may, after holding summary inquiry, declare election in the constituency as a whole void and direct for re-poll in the constituency and if such a situation is confined only to the extent of some of the polling stations, may direct re-poll at these polling stations. The power of Election Commission of Pakistan under section 103-AA is entirely independent to the power to be exercised in an election petition by the Election Tribunal established under section 52 of Act, 1976, in terms of Article 225 of the Constitution, therefore, the contention of the learned counsel for the respondent that power of the Commission under sections 103 and 103-AA of Representation of the People Act, 1976 is subject to Chapter VII of the said Act as the Commission by virtue of subsection (3) of section 103-AA of Act 1976 has to perform its functions as Tribunal, has no substance. The Commission, despite having been declared as Tribunal under section 103-AA(3) of the Act, is empowered to adopt any procedure in the proceedings of summary inquiry before it and is not bound to follow the procedure of Tribunal or record the t evidence and hold a regular inquiry. The additional power of Tribunal given to the Commission under subsection (3) of section 103-AA ibid would not change the status, power and functions of the Commission.

The Commission to ensure free, fair and transparent election, exercises powers under section 103 of Act, 1976 a sunder:-

“103. Commission to ensure fair election, etc.—Save as otherwise provided, the Commission may—

(a) stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election:

(b) review an order passed by an officer under this Act or the rules, including rejection of a ballot paper; and

(c) 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 and fairly, and in accordance with the provision of this Act and the rules.”

Section 103-AA empowers the Commission to declare the election void if there is a grave violation of the provisions of Act or rules and if Commission comes to the conclusion that due to such violation election was materially affected and disturbed, may pass order of re-poll in whole of the constituency or at one or more polling’ stations as the case may be, in the interest of fair, honest and transparent election. The power of declaring the election partially void and re-polling at some polling stations, is included in the power of declaring election of a constituency as a whole void. Section 103-AA provides as under:–

“103-AA. Power of Commission to declare a Poll void.—(1) Notwithstanding anything contained in this Act, if from facts apparent on the face of record and after such summary inquiry as it may deem necessary, it is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll any constituency ought to be declared void and by notification in the official Gazette; call upon that constituency to elect a member in the manner provided for in section 108.

(2) Notwithstanding the publication of the same or a returned candidate under subsection (4) of section 42, the Commission may exercise the powers conferred on it by subsection (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.

(3) While exercising the powers conferred on it by subsection (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented, and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.”

The careful examination of above referred two provisions in the light of Articles 218 and 219 of the Constitution would make it clear that the Commission with the view to discharge its constitutional duty to conduct the election honestly, fairly and justly in a transparent manner and in accordance with law has been empowered to declare the elections in the constituency as a whole void or at one or more polling stations if the circumstances so warrant. This power is exercisable by the Commission within 60 days from the date of publication of the name of returned candidate in the official notification whereas the limitation for filing election petition under section 52 of the ibid Act is 45 days from the date of publication of the notification of result, therefore, there is no conflict between the two provisions. The Commission under section 103 ibid can pass an appropriate order to ensure fair, just and transparent elections during the process of election and under section 103-AA ibid if the Election Commission, after holding a summary inquiry is satisfied that a grave illegality has been committed in the election which would be a source of impairing the result, may declare the election of the constituency as a whole void or of the specified polling stations as the case may be. The Commission while exercising the powers under section 103-AA(3) shall be deemed to be a Tribunal and may regulate its own procedure. The expression “shall be deemed to be Tribunal” authorizes the Commission to exercise power of a Tribunal with the choice of any procedure to be regulated by it but the procedure provided in Chapter VII of the Representation of the People Act, 1976, for the trial of election petition is not binding on the Commission. This may be noticed that the Commission has executory power under section 103-AA to discharge its functions under Articles 218(3) and 219 of the Constitution whereas in an election petition the election of a returned candidate, is challenged on the basis of ground of corrupt and illegal practice or illegal act alleged to have been committed. In election petition precise statement of facts, including the names of parties who allegedly were responsible for committing illegal acts and corrupt practice in the ‘election with particulars of date, time and place and manner of commission of such illegal acts and corrupt practice, have to be essentially supplied and Election Tribunal on conclusion of trial, in exercise of its powers under section 67 of the Act, may dismiss the petition, declare the election of a returned candidate void or declare any other candidate to have been elected or declare the election as a whole void whereas the Commission under section 103-AA of Representation of the People Act, 1976, without undertaking the exercise of adjudication of the complaint as an election petition or holding a regular inquiry, can declare election wholly or partially void in a constituency in case of grave illegality or violation of rules which is brought to its notice during the process of election. There is no bar for a defeated candidate to raise such a ground in the election petition but mere fact that the remedy of election petition can be availed at a subsequent stage and ground of grave illegality and violation of rules which resulted in illegal and corrupt practices are also adjudicateable before Election Tribunal in an election petition, may not debar the election Commission to exercise powers under section 103-AA of the Representation of the People Act, 1976. The contention of the learned counsel for the respondent that if op the basis of ground mentioned in the application under section 103-AA, remedy of election petition can be availed, the Commission must not exercise the powers and interfere in the matter during the election, being beyond the wisdom of law, has no substance to be dilated upon. The Election Commission of Pakistan in discharge of its constitutional duty has to make all arrangements for the elections of the National and Provincial Assemblies at all stages. The function of Election Commission before the start of election process is only of ministerial nature and after the start of process, it is the duty of Election Commission to ensure that the election is conducted honestly, justly, fairly and in accordance with law, therefore, the Commission has to take all necessary steps and measures to ensure that the election is transparent in all respects and if in the process of election any illegality is committed or violation of law or rules is brought to its notice which may have material effect on the result of the election, the Commission will certainly undo such illegal acts and violation of law or rules in the interest of fair election. The Commission may not necessarily entertain a complaint on the grounds which can be raised in the election petition but mere fact that the ground taken in an application under section 103-AA of Act, 1976, can be raised in the election petition, is not a valid reason to curtail or reduce the power of Commission to the extent of only issue instructions and guidance to the concerned authorities in the process of election. The narrow interpretation of the above provisions of law in respect of power of Election Commission would virtually render these provisions as redundant and defeat the very purpose of law. The power of the Commission is not confined only to the extent of ministerial and administrative job of election rather the Commission also has to ensure free, fair and transparent election in terms of Articles 218 and 219 of the Constitution and consequently, the provision of sections 103 and 103-AA have to be given effect in letter and spirit which empowers the Commission to supervise and ensure the conduct of election fairly, honestly, justly and in accordance with law. The different interpretation may redundant these provisions and this is settled principle of interpretation of statutes that redundancy cannot be attributed to any provision of law rather in the wisdom of legislature in case of any conflict of two provisions, the rules of harmonious interpretation is followed. The reference may be made to the case of Al-Jehad Trust v. Federation of ,Pakistan PLD 1996 SC 324 and relevant part of the judgment is read as under:–

“Where there is conflict between the two provisions, the entire provisions of the Constitution are required to be read as a whole, and the basic features of the Constitution taken into consideration.”

The emphasis of the learned counsel for the respondent that the Election Commission, without holding proper inquiry could not exercise powers under section 103-AA of the Act to declare the election of a constituency as a whole void and there is also no concept of partial declaration of election void, has no legal foundation. The Election Commission of Pakistan may exercise power under section 103-AA of the Act in the manner provided therein and not beyond that, but the plain reading of section 103-AA of the Act-would show that meaning of expression “in the constituency void” is not only referable to, the whole constituency rather its true import is election in the constituency as a whole or at one or more polling stations. It was held in Abdul Hamid Khan Achakzai v. Election Commission of Pakistan 1989 CLC 1833 as under:

“Election commission’s jurisdiction for declaring election of the whole constituency as void would depend on being satisfied about the existence of grave illegalities or serious violations of the provisions of the Act LXXXV of 1976 or Election Rules in the conduct of polls in any constituency.”

It was further held that:

“No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of section 103-AA but such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation.”.

In view of above discussion we hold that Chapter X as well as sections 103 and 103-AA of Representation of the People Act, 1976 are entirely independent to section 52 of the Act and the Commission before or after issue of notification of result of election, may exercise jurisdiction to entertain a complaint on the grounds mentioned therein and may continue to exercise the power within 60 days after official announcement of result of election whereas an election petition can be filed within 45 days of the publication of notification of result and election petitioner can take all these grounds which were taken in the application under section 103-AA of 1976 Act before the Election Commission and thus jurisdiction of Commission to some extent is concurrent with the Tribunal without any conflict.

The careful examination of complaint would suggest that the illegalities and irregularities committed in the election were grave in nature which may have materially affected the result. The conclusive evidence and proof of facts regarding illegal and corrupt practices is not the requirement of law for exercise of powers by the Commission under section 103-AA of the Representation of the People Act, 1976 rather the Commission if on the basis of tentative assessment of the material available before it is satisfied regarding the correctness of the allegation, may pass such an order as is deemed proper in the circumstances of the case.

The perusal of complaint, reveals that petitioner sought interference of Commission mainly on the basis of following three grounds:

(a) A day before the election, Returning Officer transferred polling officers of 17 polling stations without permission of Election Commission and

(b) The ratio of vote on polling stations of kacha areas including women polling stations was unnatural.

(c) The women polling staff was not available at certain polling stations which resulted in bogus voting of women on these polling stations.

The Election Commission of Pakistan, in the light of facts supplied by the petitioner in the complaint and the subsequent application moved by him as well as the reports obtained from the Returning and District Returning Officer and keeping in view the ratio of votes secured by the petitioner at 171 polling stations with large difference of ratio at disputed polling stations of katcha areas and other relevant material in support of the allegation of unfair and unjust election, proceeded to pass the order of re-poll at 18 polling stations to ensure the fair, just and honest election in accordance with law. The Returning Officer and the District Returning Officer have not controverted the transfer of polling staff at 17 polling stations, on 17-2-2008 therefore, notwithstanding the fact that in the complaint, the details of only one polling station was supplied, the large scale of transfer of polling officers by the Returning Officer without information and knowledge of District Returning Officer or intimation of the Election Commission, was grave illegality. This is mandatory under section 9(2) of Act, 1976, that Returning Officer at least 15 days prior to the day of poll cannot change the polling staff without permission of the Commission and departure thereto, has serious consequence reflecting upon the transparent, fair, just and honest conduct of election which may impair the result. This is also noticeable that women polling staff was not provided at women polling station but still women votes were polled with the same ratio of the votes which were polled at male polling stations. The excuse for non-availability of women polling staff was that it was not possible for female to discharge duty in the area due to security reasons but at the same time without any scrutiny, women voters polled their votes and consequently, this contradiction would sufficiently suggest that at the women polling station bogus votes were polled in absence of women polling staff. In view of the transfer of polling staff one day before the poll and difference of the ratio of votes secured by the parties at 171 polling stations and at the polling stations of katcha area, where re-poll had been ordered, coupled with the fact that women polling staff was not available, would be the strong evidence and circumstances to show unfair and unjust election at certain polling stations of the constituency and change of result in artificial manner. In these circumstances, the Commission was neither required to record evidence nor hold a regular inquiry rather could conveniently proceed to declare the election void at these polling stations and direct for partial re-poll in discharge of its constitutional duty of holding transparent elections. In the light of the above features of the case, the High Court, in exercise of its constitutional jurisdiction, was not supposed to substitute its opinion with the opinion formed by Election Commission on the basis of material available before it and we having considered the matter in detail, have not been able to find that order passed by the Election Commission of Pakistan was not suffering form any jurisdictional defect nor was coram non judice or mala fide to be justifiably interfered by the High Court in its constitutional jurisdiction.

Learned counsel for the petitioner in the connected petition bearing C.P. No.370 of 2008 has submitted that same questions of law and facts are involved in this petition, therefore he has nothing to add and would adopt the arguments of learned counsel for the petitioner in C.P.No.369 of 2008, in support of this petition.

In view of the above, the order passed by the Election Commission, in exercise of its constitutional jurisdiction and statutory discretion being not suffering from any legal defect, was not questionable before the High Court in writ petition. The mere reasons that in the circumstances of the case, the Election Commission could also take a different view of the matter and direct the petitioner to avail remedy of election petition under section 52 of the Act was not a valid and legal ground to interfere in the order of Commission in the writ jurisdiction. The Election Commission of Pakistan consists of a Chairman and four Judges of the High Courts, the Chairman is a retired Judge of the. Supreme Court of Pakistan and the members are serving Judges of the High Courts and this high powered constitutional body exercises jurisdiction under the Constitution therefore, the observation of the High Court that order passed by the Election Commission was capricious, mechanical and arbitrary, was uncalled for and not proper. The High Court no doubt can set aside the order passed by the Election Commission if it comes to the conclusion that order was illegal but care must be taken by using the language for such forum which exercises powers under the Constitution as a judicial forum. The above expressions used in the judgment are not used for such constitutional or judicial forum which are not at par to the non-judicial bodies and forums and consequently, we expunge the above observation made in the judgment of the High Court. These are the reasons for our short order of even date, which reads as under:

“For the detailed reasons to be recorded later on, we having heard the learned counsel for the parties and Attorney General for Pakistan and having considered the questions of facts and law raised in these two connected petitions, set aside the judgment dated 28-3-2008 passed by the High Court of Sindh, at Karachi, rendered in C.Ps.Nos.454 & 455 of 2008 and restore the order dated 4-3-2008 passed by the Election Commission of Pakistan. These petitions are accordingly converted into appeals and allowed with no order as to costs.”[pp. 809, 810, 813, 814, 815, 816, 817, 818, 819 & 820] A,B,C,D,E,F,G,H,I,J,K, & M

                                                                                   Appeals allowed.