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Petitioner: CH. NASIR IQBAL & others VS Respondent: FEDERATION OF PAKISTAN through Secretary JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Gulzar Ahmed, Sh. Azmat Saeed Title:CH. NASIR IQBAL & others vs FEDERATION OF PAKISTAN through Secretary
JUDGMENT
Reported As: PLJ 2013 SC 817 Result: Petitions disposed of Judgment JUDGMENT Iftikhar Muhammad Chaudhry, CJ.--The listed Constitution Petitions were disposed of vide short order dated 29.04.2013 with the observations that let the ECP make all possible efforts to achieve the object, so the expatriates may also participate in the General Elections in exercise of their fundamental rights conferred under Article 17(2) of the Constitution of the Islamic Republic of Pakistan, 1973. 2. In the meanwhile as it has been noted above, the Election Commission of Pakistan (ECP) took up the matter with the concerned Government Authorities and ultimately the President of Pakistan, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, promulgated the Election Laws (Amendment) Ordinance, 2013 [Ordinance No, IV of 2013], published in the Extraordinary Official Gazette on 09.05.2013, to amend the Representation of the People Act, 1976 (LXXXV of 1976) [ROPA] as well as the Electoral Rolls Act, 1974 (XXI of 1974) [ERA]. By means of Section 2 of the Ordinance, 2013, Chapter V-B titled Out of Country Voting containing Sections 47-B to 47-K, was inserted in ROPA. The said provisions are reproduced hereinbelow: "CHAPTER V-B OUT OF COUNTRY VOTING 47-B Polling Station.--(1) the Commission, at least fourteen days before the day fixed for poll abroad, shall establish polling stations with as many polling booths as may be necessary in the premises of an Embassy, a Mission or a Consulate or any other public place notified by the Embassy, Mission or Consulate, in the countries as may be determined by it:
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Provided that the Ministry of Foreign Affairs have obtained consent of such host country for establishment of the polling stations. 47-C Appointment of Presiding Officers, etc.--The Commission from amongst the officers of the Federal Government or Autonomous Bodies under the Federal Government, preferably posted abroad, shall appoint as many Presiding Officers as the number of polling stations and as many Assistant Presiding Officers as the number of polling booths established in an Embassy, Mission, Consulate or public place notified for the purpose. 47-D. Registration of Pakistani citizens living abroad.-- (1) A Pakistani who lives abroad and is in possession of National Identity Card for Overseas Pakistanis issued under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000) may, not later than ten days before the day fixed for poll abroad, register himself as an elector in the Embassy, Mission or Consulate, as the case may be, where he intends to cast his vote; (2) For the purpose of registration, a Pakistani living abroad may make an application through courier or in person, in the format provided by the Commission on its website, to the authorized officer who shall issue a receipt to the elector containing the information of the constituency in which he is registered in Pakistan if the applicant applies in person. (3) The application through courier must be received at the Embassy or Mission at least ten days before polling day and the authorized officer shall send a receipt to the applicant at his address given in the application: Provided that any Pakistani living abroad shall not be entitled to be registered as elector if he:-- (i) is not registered as voter in any constituency in Pakistan; (ii) is in possession of National Identity Card for Overseas Pakistanis issued to him for one country and he applies for registration from another country; (iii) does not produce the original National Identity Card for Overseas Pakistanis or such card has expired; (iv) seeks registration on the basis of Pakistan Origin Card. (4) The authorized officer shall electronically mark the elector in the voters' list whereupon the elector shall become entitled to vote and such list shall be made available to the Presiding Officer at the Polling Station established abroad. Explanation.-- The authorized officer means any officer authorized by the Commission for the purpose of this section. 47-E. Voting procedure.--(1) Where an elector presents himself at a polling station abroad, the Presiding Officer shall issue him a ballot paper, after satisfying himself about the identity of the elector and for that purpose may require him to produce his National Identity Card for Overseas Pakistanis; (2) Before a ballot paper is issued to an elector, the Assistant Presiding Officer shall: (i) verify the number and name of the National and Provincial Assembly constituency in Pakistan of the elector where his name appears in the electoral rolls database, with the help of his National Identity Card for Overseas Pakistanis; (ii) call out the name of the elector and his constituency number; (iii) mark the entry relating to the elector on the electoral roll to indicate that the elector has cast his vote; (iv) print a ballot paper with counterfoil containing the particulars of the elector and obtain the thumb impression of the elector on the counterfoil; (v) stamp the ballot paper on its back with the official mark and sign it; (3) After receiving the ballot paper the elector shall mark the ballot paper with Marking Aid Stamp at any place within the space containing the name and symbol of the contesting candidate for whom he wishes to vote and insert it in the ballot box.
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47-F Election Monitors.--The Commission shall as many independent 'monitors as may be necessary at a polling station abroad to ensure the conduct of free, fair and transparent poll. 47-G Poll Day.--(1) For the purpose of out of country voting the poll day or days shall be the day or days fixed for polling abroad by the Commission. (2) The Commission shall fix the day or days and hours which shall not be less than eight hours, during which the poll shall be held and the Presiding Officer shall give the public notice for the day or days and hours so fixed and hold the poll accordingly. 47-H Supply of election material.--The Commission shall provide well in advance, the election material as may be required for the purpose at the relevant polling stations established abroad. 47-I Close of poll.--(1) At the close of poll, the Presiding Officer shall open the ballot boxes and take out all the ballot papers and segregate them National and Provincial Assembly constituency-wise; count the ballot papers and prepare statement of count in respect of each candidate in the presence of the monitors and the Assistant Presiding Officers. (2) The Presiding Officer shall put the ballot papers in separate temper-evident bags constituency- wise and shall piece a copy of the statement of count in each bag duly signed by the Presiding Officer and the monitors. (3) The Presiding Officer shall send through diplomatic bag, all the temper-evident bags containing the marked ballot papers, statement of the count and ballot paper account to the Commission. (4) The Commission on receipt of the diplomatic bag from the Presiding Officer shall take out all the temper-evident bags and send to the Returning Officer concerned the respective temper- evident bags so as to reach him ;before the consolidation of results. 47-J Application of laws.--(1) Subject to the provisions of this Chapter, the provisions of this Act and the provisions of the Representation of the People (Conduct of Election) Rules, 1977 shall mutatis mutandis apply to our of country voting. (2) The provinces of this Ordinance shall not apply to fill a casual vacancy in the Assembly which has fallen vacant for any reason after general elections, 2013. 47-K Removal of difficulties. If any difficulty arises in giving effect to any of the provisions of this Ordinance, the Commission may make such provision or pass such order not inconsistent with the provisions of this Act for the removal of the difficulty as the Commission may deem fit." Similarly, by means of Section 3 of the Ordinance, 2013, certain amendments were made in Section 103-A of ROPA to the following effect: "3. Amendment of Section 103-A, Act LXXXV of 1976.--In the Representation of the People Act, 1976 (LXXXV of 1976), in Section 103-A, for the words, comma, figures and brackets the Contempt of Court Act, 1976 (XLIV of 1976), the worlds, comma, figures and brackets 'the Contempt of Court Ordinance, 2003 (V of 2003)' shall be substituted." Lastly, by means of Section 4 of the Ordinance, 2013, sub-section (6) was added to Section 7 of the in ERA, which reads as under: (6) Any person holding National Identity Card for Overseas Pakistani and living abroad for any purpose shall be deemed to be resident in the electoral area in which he would have been resident if he had not been abroad." In this way the order of the Court was implemented by the authorities. 3. We must assert that political good governance depends on the participation of the masses in the electoral process; hence, the role of every voter is very much important in bringing a true democracy. It is participation of each and every individual which would bring about a positive change. Individuals use their right of vote to choose their representatives, which is provided in the Objectives Resolution. In order to achieve the Constitutional objective of democracy; we have to bear in mind the importance of every single voter as the primary stakeholder in the process of
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conducting elections. 4. It is only the power of ballot which has the capacity to create a change in a country. Theodore Roosevelt, the 26th President of the United States (1901-1909), has highlighted this point by asserting that "a vote is like a rifle; its usefulness depends upon the user." Similarly, Lyndon B. Johnson, the 36th President of the United States (1963-1696), has said that "the vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men." 5. Sir Winston Churchill, the Prime Minister of the United Kingdom from 1940 to 1945, said that "at the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point". It is in this context that we have time and agar asserted that every necessary and possible step needs to be taken in order to encourage the people to participate in this process. 6. Under Article 17 of the Constitution every citizen has right to vote to participate in the governance of the country through their chosen representatives. The law provides the people of this country, irrespective of their social ethnical status and religious affiliation, to choose their representative in whom they repose confidence. Hence, every eligible individual should be allowed to utilize the right to vote irrespective of his caste or creed or any other consideration, the Supreme Court of Pakistan adjudged many cases on the aspect of access of voters to the credentials of the contesting candidates. Reference in this behalf may be made to the case of Mian Najeeb-ud-Din Owaisi vs. Amir Yar (CMA 1535/2013 etc) wherein this Court held as under: "The voters who are about to elect their representatives are one of the most important stakeholders, therefore, to achieve the object of honest, just and fair elections, they would not constitutionally and legally allow a candidate to manage to sneak into Parliament without proving that he is qualified to represent them as such representative has to perform the noblest and honourable job of making policies and laws for the Nation." Reference may also be made to the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) wherein it has been observed that Article 17(2) provides the basic guarantee to the citizen against usurpation of his will to freely participate in the affairs of the governance of Pakistan through political activity relating thereto. The said observation was also reaffirmed by this Court in the Case of Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473). Thus, objection raised by learned Attorney General on the maintainability of petition under Article 184(3) of the Constitution, is overruled. 7. It is now settled in almost all countries of the world that every citizen of a country, irrespective of his place of residence, must be allowed to participate in and contribute to the democratic process of his country, though the manners and the extent of the right to vote differ from country to another. Countries including Austria, Belgium, Croatia, France, Italy and Norway allow voting to all the categories of nonresident citizens, including those permanently residing abroad while Bosnia & Herzegovina, Denmark, Germany and United Kingdom are countries that allow the right to vote to certain categories of citizens residing abroad. 8. It is to be noted that there is no distinction between the citizens living within Pakistan or outside the country, with regard to the right to vote in terms of the Article 17 of the Constitution. The only difference is that the citizens living within the country have been provided the facilities to cast their vote in the elections, i,e, the Elections of National and Provincial Assemblies, Local Bodies and others, whereas citizens living abroad are yet to be extended the mentioned facilities. It warrants to mention that the right to vote has not been denied to the overseas Pakistanis, who are as much important as those living inside the country, but only the facilities to vote, which provides the sense of ownership and participation in the governance of the country, has not been extended to them.
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Needles to observe that the Pakistani citizens living abroad earn money by working there and then send the same in the shape of foreign remittances to, the country. In this manner, they contribute to the welfare of the state, well being of the citizens and good governance of the country by providing financial support through their families living inside Pakistan. 9. It must be clarified here that the overseas Pakistanis, as noted hereinabove, enjoy the right to participate in the election process in terms of Article 17 of the Constitution being dignified citizens of the country, though residing outside its territory, as such they cannot be denied the same rights on technical grounds, i,e, logistic arrangements made outside the country for casting their votes. 10. This matter need not to be discussed any further on the strength of Constitutional provisions as well as the law discussed hereinabove, and importantly the Government itself having realized this aspect of the issue, promulgated an Ordinance on 09.05.2013 making the necessary amendments in the Election Laws. However, the only issue remains the implementation of the law and converting it into an Act of the Parliament, for providing permanency to its provisions, thereby ensuring fairness in all kinds of elections including the elections of National and Provincial Assemblies as well as Local Bodies in terms of Articles 32 and 140-A of the Constitution. 11. It is vital to note, however, that during hearing of the listed petitions, the Court insisted the Election Commission of Pakistan as well as the Federal Government to ensure the participation of Overseas Pakistanis in the General Elections of 2013, but the Ordinance, whereby, the required amendments were made in the Election Laws, was promulgated and gazetted on 09.05.2013, only two days prior to the date E of holding of General Elections, therefore, necessary arrangements could not have been made to extend the facility of voting to the Overseas Pakistanis. 12. Now as the General Elections are over and a newly elected Government is in power, while, elections of Local Bodies are approaching, the Executive/Federal Government is bound to discharge its Constitutional/legal obligations to ensure that the citizens/voters living outside the country are enabled to participate in all kinds of elections in future including the forthcoming elections of Local Bodies. 13. Needless to observe that notwithstanding the fact that an Ordinance has been issued which is likely to be made an Act of the Parliament, but if, for any reason, the said Ordinance lapses, not being made an Act of Parliament, it shall be deemed that Article 17 of the Constitution continues to insist upon the Federal Government to extend the facility of voting to overseas Pakistanis in the election of the Parliament as well as Local Bodies. 14. These are the reasons of our short order of even date, which is reproduced hereinbelow:-- "These Constitutional Petitions have been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, on behalf of Ch. Nasir Iqbal and other Expatriate Pakistanis and by Mr. Imran Khan Chairman PTI and others, instituted as back as on 21.04.2011 and 19.12.2011. The relief claimed in both the mentioned Constitutional Petitions is somehow an identical, therefore, from one of the Constitutional Petition Bearing No, 39 of 2011, the same has been reproduced herein below:-- "It is therefore most humbly prayed that the instant petition may kindly be accepted and respondents be directed to take all those steps which are necessary for implementation of the fundamental right of vote to all overseas Pakistanis including arrangements in Consulates and Embassies of Pakistan all over the world before the next General Election for National and Provincial Assemblies and, an opportunity be provided to overseas Pakistanis of casting their votes." 2. Both the said petitions came up for hearing before this Court on different dates commencing from 21.12.2011 when an order in the Constitutional Petition No, 90 of 2011, was passed. As we intend to dispose of both these Constitutional Petitions for the reasons to be recorded later but consider it appropriate to reproduce the order noted hereinbefore in extenso for the sake of comprehending the background of the issues involved in the matters:--
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"This petition has been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan. The issue being raised herein is about declaring that the citizens of Pakistan in terms of Article 51 of the Constitution but living outside the country, nave the fundamental right of franchise, therefore, denying such right to the citizens, who are reportedly about eight millions living outside the country, raises the question of public importance's. 3. It may be noted that the citizens may be within or outside the country have a right to elect their representatives for the Parliament and any such person who is not residing in the country at the time when the polling takes place, cannot be denied the right of franchise solely for the reason that he is not available in the country. . a. Learned counsel Appearing for the petitioner states that there are three categories of the citizens residing outside the country and are being deprived of their right of franchise. He has explained the three categories as follows:-- (a) Those who are citizens of Pakistan but living outside the country or horn outside the country being national of Pakistan and the passport is issued to them by the Government of Pakistan, and they are earning their livelihood outside the country and making remittances to support their dependents in the country; (b) The Officers/Officials of the Diplomatic service; (c) Those citizens, who were originally Pakistanis but have acquired the nationality of the other country and maintaining/ holding both the nationalities. 4. He has also pointed out that as back as in the year 1993, Constitutional Petition No, 26 of 1993 was filed before this Court claiming the same relief as it has been prayed for by him and in that matter, a larger Bench of this Court vide judgment dated 15.11.1993 had forwarded the matter to the Government of Pakistan for consideration. According to him till date there had been correspondence between different Ministries but so far no final decision in this regard has taken place. He has read before us paras 8, 9 and 10 of the judgment. For the sake of convenience, the same are reproduced herein below:-- "8. The leaned counsel for the petitioner finally suggested that this matter which has already been brought to the notice of the Chief Election Commissioner and the Government should in the first instance be examined in depth by the Chief Election Commissioner and finally by the Government with a view to facilitate the exercise of franchise by the eligible Pakistanis living abroad. In this context the provisions on the subject contained in the other comparable Federal Constitutions may also be examined and appropriate steps taken depending upon the extent of resources of the Government. 9. We consider that this is a reasonable suggestion and before dealing with the question in the abstract on the legal and constitutional plane; it would be proper that this exercise is undertaken in the first instance by the authorities constitutionally entrusted with the task. 10. As regards the extra territorially of the laws, we may point out that the Constitution already provides that "obedience to the Constitution and the Laws is the obligation of every citizen wherever he may be". This suggests the Pakistanis living abroad to the laws of the land even those which do not have extra territoriality. With these observations, the Petition is disposed of." 5. The learned counsel has also referred to a write-up purported to have been issued by the Electronic Government Directorate, Ministry of IT & Telecom, Government of Pakistan and has referred to its different captions which are as under:-- (a) Grant of Right of vote to Overseas Pakistanis; (b) Representations of Overseas Pakistanis in the National and Provincial Assemblies; (c) Action taken on the issues. From the last mentioned caption 'action taken on the issues' following items being important and relevant to subject are noted for reference:,-
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(i) Giving a right to vote to citizens residing overseas has precedent in many countries, e.g. France, United States, etc. (ii) Determination/delimitation of a constituency for each Province (as proposed in the said summary) may not be possible for Overseas Pakistanis citizens. (iii) Many Overseas Pakistanis especially in the United States are not allowed to keep their Pakistanis citizenship if they become naturalized citizens there, in such a situation, they will not be able to vote for representation in Pakistani legislatives. (iv) The Election Commission of Pakistan has re-constituted the Special Committee on right of vote to overseas Pakistanis under the Chairmanship of Secretary, Election Commission of Pakistan including the representative from Prime Minister's Secretariat, Ministry of Overseas Pakistanis, M/o Foreign Affairs, M/o Law & Justice, M/o Parliamentary Affairs, M/o Finance, National Database & Registration Authority (NADRA), Overseas Pakistanis Foundation (OPF) and offices of Election Commission of Pakistan. 3. Learned Attorney General for Pakistan, however, requests that he needs some time to consult Ministry of Law & Justice, Ministry of Foreign Affairs, Ministry of Overseas Pakistanis and the Election Commission of Pakistan and states that after taking instructions from these departments, he would be in a better position to make his submissions. 7. In above view of the matter, the case is adjourned. In the meantime, office is directed to issue notice to the respondents to the their replies/concise statements to the petition within a period of two weeks. Copy of this order along with memo. of the petition and its annexures be supplied to the respondents during course of the day. On receipt of replies/concise statements from the respondents, office shall put up the matter in Court for hearing. 3. A perusal of the above order finds mentioned an earlier effort made by the overseas Pakistanis in the case of Miss Yasmin Khan and another v. Election Commission of Pakistan, Islamabad through Secretary an another (1994 SCM R 113) when the said Constitutional Petition was admitted to regular hearing on 04.10.1993, and notices were issued to all concerned. Finally, by a Larger Bench of this Court, the above petition was disposed of on 15.11.1993, The relevant para therefrom finds mentioned in the order, reproduced hereinabove. 4. Syed Sher Afgan, Director General (Elections), ECP, stated that according to his knowledge the observations of this Court in the case of Yasmin Khan (ibid) were considered by the Cabinet in…
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