The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per, Iftikhar Muhammad Chaudhry, CJ and Gulzar Ahmed and Sh. Azmat Saeed, JJ

(a) Constitution of Pakistan, 1973, Articles 218(3), 219 & 220

It is the duty of the Election Commission of Pakistan to organize and conduct the elections and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, be it a general election or a bye-election.

It is the command of the Constitution under Article 218(3) that the Election Commission of Pakistan is charged with the duty to ensure free, fair and just elections in the country, be it a general election or bye-election.

Consequently, Election Commission must fulfill its obligation cast upon it by Article 218 of the Constitution of ensuring the holding free, fair and transparent elections and to achieve such purpose seek assistance, if necessary from the Executive Authorities in the Federation in this behalf which are obliged to render such assistance by virtue of Article 220 of the Constitution. [pp. 125, 131, 140] A, F & N

(b) Constitution of Pakistan, 1973, Article 219

Whereas under Article 219 of the Constitution, the Election Commission of Pakistan is charged with the duty of preparing electoral rolls and revising the same periodically so as to enable all the eligible voters to exercise their right of franchise.

Whereas, under Article 219 of the Constitution, the Election Commission of Pakistan is also commanded to revise the electoral list annually, object of which is none else, except that free and fair elections are held. [pp. 125, 133] B & G

(c) Constitution of Pakistan, 1973, Article 184(3)

It has been declared that proceedings under Article 184(3) are not limited to adversarial proceedings to be initiated by a wronged litigant seeking redressal of his individual grievance. [p. 129] C

(d) Constitution of Pakistan, 1973, Articles 184(3) & Part I, Chap. 1 [8-28]

Likewise, the rule of locus standi has also not been held applicable to the cases involving questions of public importance with reference to enforcement of the Fundamental Rights, especially in the domain of Public Interest Litigation to ensure a meaningful protection of the Rule of Law to all citizens. [p. 129] D

(e) Constitution of Pakistan, 1973, Articles 218(3), 219(a), 51(2)(c) & 184(3)

Thus, in the light of the law laid down in the aforesaid cases, it is clear that this Court, under Article 184(3) of the Constitution, not only has the jurisdiction to pass appropriate orders in the cases involving questions of public importance with reference to enforcement of fundamental rights guaranteed under the Constitution but is also empowered to ensure fulfillment of the command of the Constitution of holding elections honestly, justly, fairly and in accordance with law. Hence, these petitions are held to be maintainable and the grievances raised therein are justiceable by this Court in the present proceedings. [p. 131] E

(f) Constitution of Pakistan, 1973, Articles 218(3), 219(a), 51(2)(c) & 184(3)

The primary basis for the Electoral List of the Housing Census carried out in April-May 2011. Even after the preparation of the Final Electoral Roll, the necessity of a further door-to-door verification was conceded by the Election Commission in para 23 of the above-said CMA, which is reproduced as follows:-

“23. Voters having different current and permanent address can be re-verified through subsequent door to door verification along with fresh CNIC registrations.”

It may be observed that Karachi has a peculiar background, which includes a serious law & order situation, detailed stock of the same has been taken by this Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997). In this judgment categorical directions were made for delimitation of the constituencies of Karachi in the following terms: –

“Further observe that to avoid political polarization, and to break the cycle of ethnic strife and turf war, boundaries of administrative units like police station, revenue estates, etc. ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as NO GO Areas under their fearful influence. Subsequent thereto, on similar considerations, in view of relevant laws, delimitation of different constituencies has also to be undertaken with the same object and purpose, particularly to make Karachi, which is the hub of economic and commercial activities and also the face of Pakistan, a peaceful city in the near future. The Election Commission of Pakistan may also initiate the process on its own in this behalf.”

We believe that so far, the above directions have not been implemented, therefore, Election Commission owes an explanation to this Court. Needless to observe that the above directions were made in the backdrop of the said case and was discussed at length.

Viewed in the above perspective, the discrepancies in the Electoral Roll of Karachi identified by the learned counsel for the Petitioners by way of example, examined in conjunction with the admitted position of the Election Commission that a door-to-door verification of the entire residents of Karachi has not been carried out leads to the conclusion that the Electoral Rolls of Karachi do not inspire confidence and the possibility that a significant number of residents of Karachi may have been disenfranchised cannot be ignored. An accurate Electoral Roll is a sine quo non for the holding of a free, fair and transparent election, which is not only the command of the Constitution but also a Fundamental Right of the citizens, which appears to have been compromised qua the residents of Karachi.

In the above circumstances, it is clear that the Electoral Rolls of the city of Karachi are required to be revised by the Election Commission in exercise of powers conferred upon it under Article 219 of the Constitution read with Electoral Rolls Act, 1974 to achieve the object, which is to be ensured by the Commission in terms of Article 218 of the Constitution. Thus, the Election Commission of Pakistan is directed to carry out proper and complete door-to-door verification in Karachi so as to ensure that no voter is disenfranchised or dislocated and all other discrepancies are rectified as early as possible.

In view of the peculiar security situation in Karachi highlighted hereinabove such verification must be carried out by the Election Commission with the help and assistance of Pakistan Army and the FC. [pp. 132, 133, 135, 140] H, I, J, K & O

(g) Constitution of Pakistan, 1973, Articles 218(3), 219(a), 51(2)(c)

There can be no escape from the fact that a free, fair, just and transparent election is the very heart of our democratic system, as envisaged by the Constitution. Such elections must not only be held in a fair, just and honest manner but also appear to be so; in order to inspire the confidence of the electorate. The provisions of Article 219 of the Constitution and the Electoral Rolls Act, 1974 and rules framed thereunder must necessarily be interpreted in manner so as to achieve the said object. [p. 140] M