Jun 2, 2018 (DESPARDES/PKONWEB) — The mother of all deals political parties made last October in parliament to defang the Elections Commission of Pakistan from conducting close scrutiny of their potential candidates for elections stands scuttled by a judgment of Lahore High Court Friday.
The court has ruled that lack of disclosures and information on potential candidates essentially means that a voter will not have the required information on the basis of which an informed decision can be made.
The court said Forms (included in Electoral Reforms Act 2017) to be submitted by candidates do not include mandatory information and declarations as required from aspiring lawmakers by the Constitution and law, including details such as their educational background, criminal record or if they are dual nationals, etc.
Recognizing that the conduct of elections and preparation of the forms were the ECP’s exclusive jurisdiction, the court asked ECP on Friday to improve the impugned forms.
The civil complainant’s counsel had submitted a comparative chart showing the difference between the 2008, 2013 and 2018 nomination forms highlighting that vital information was missing from the new forms.
The Supreme Court had in March 2013 declared the then updated nomination forms constitutional and announced that the 2013 general elections would be held on the basis of those forms.
Then chief justice Iftikhar Muhammad Chaudhry had observed that it was the right of the voters to know certain details about the person representing them or seeking to represent them in Parliament.
Judge Ayesha A. Malik in her judgement ordered the ECP to ensure that all mandatory information and declarations are part of the revised Form A, the nomination form for election to an assembly or the Senate, and Form B, the statement of assets and liabilities.
The Electoral Reforms Act 2017 passed by lawmakers in October had taken away ECP’s authority to seek the following information from each candidate:
- Educational qualifications of the candidate
- Current occupation/job/profession/business of the candidate
- Dual nationality, if any
- National Tax Number/Income tax returns/ and payment of income tax
- Agriculture tax returns and payment of agriculture tax
- Criminal record, if any
- Assets and liabilities of dependents
- Declaration pertaining to election expenses
- Declaration pertaining to any default in loan or government dues by dependents
- Declaration that the candidate will abide by the code of conduct issued by ECP
The forms as designed and approved by the parliament and made part of the amended Act had excluded all of the above. The move had put the ECP at odds with the parliament. The ECP had expressed its reservations then.
“The lack of disclosure and information [in Forms A and B] essentially means that a voter will not have the required information on the basis of which an informed decision can be made,” the court ruled.
Much to the dismay of invariably all parties, the court has declared the amended forms not meeting the constitutional requirements– the petition was filed by a journalist asking the court to declare the two amended forms unconstitutional.
“The impugned forms do not provide for mandatory information and declarations as required by the Constitution and the law,” Justice Malik wrote in her 39-page judgement.
The complainant’s lawyers had contended that the parliament had infringed on ECP’s authority by drafting the nomination form for candidates and making it a part of the Act.
They had argued that the forms had been amended by the parliament to omit vital information and mandatory declarations required under Article 62 and 63 of the Constitution that give voters an idea about a candidate’s credibility.
The court ruled that the ECP is empowered to add to or improve Form A and B “so as to fulfill its constitutional mandate of ensuring honest, just and fair elections”.
Justice Malik wrote that while the parliament can make laws to regulate the conduct of elections, the ultimate authority and responsibility to ensure free and fair elections is of the ECP. Hence ECP is responsible to ensure that a voter is able to make an informed decision and that the nomination forms achieve this objective, the judge said.
The Commission has now been ordered by the court to ensure that all mandatory information and declarations are part of the revised Forms.
The decision is an endorsement of the commission’s viewpoint that it was for the ECP to make nomination forms and not the lawmakers prerogative.
As excitement and exuberance seeps in the election period (June – July) for a third democratic government to rule the country, many politicos however fear such court rulings could delay the polls. Some party leaders have even questioned their timing– merit notwithstanding.
Chief Election Commissioner retired Justice Sardar Muhammad Raza has convened an emergency meeting of the ECP on Saturday to determine the course of action following the judgements of two latest court rulings.
One is the Lahore High Court verdict setting aside the new nomination forms and ordering their improvement, and the other is the Balochistan High Court verdict rejecting the delimitation of Quetta — the court has asked the Commission to carry out the process afresh.
An ECP official said the meeting would discuss the implications of the judgements pronounced a day after the announcement of the election schedule and see how to proceed. He said returning officers had been directed not to receive nomination papers on Saturday while ruling out the possibility of a long delay in printing improved nomination forms. He said it would be uploaded on the ECP’s website on downloadable format.
On the Balochistan High Court’s decision, the official said carrying out delimitation afresh would require following all stages and their timeline, which could make the holding of timely polls impossible. He hinted that the ECP might approach the Supreme Court to get the judgement reversed. Or suggest a “constitutional solution” including delimitation is fixed, said one observer, adding that –which could possibly include holding polls in these constituencies at a later date.