Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: BASHIR AHMED HALEPOTO VS Respondent: ELECTION COMMISSION OF PAKISTAN, through Chief Election Commission, Islamabad and 2 others
Court Name: Sindh High Court Judge(s): Yousuf Ali Sayeed, Munib Akhtar Title:BASHIR AHMED HALEPOTO vs ELECTION COMMISSION OF PAKISTAN, through
Chief Election Commission, Islamabad and 2 others Case No.: Constitutional Petition No,7199 of 2016 Date of Judgment:2017-05-22 Reported As: PLD 2018 Sindh 346 Result: Petition allowed Judgment ORDER MUNIB AKHTAR, J.---The petitioner is a member of the Sindh Assembly, being the candidate returned for PS-55 (Badin-cum-Tando Muhammad Khan) in the 2013 General Elections. In the local government elections held on 24.08.2016 for the office of Chairman/Vice Chairman, District Council Badin, the petitioner acted as the polling agent for one Mr. Ali Asghar, who ultimately was the successful candidate for the office of Chairman. The respondent No,3 was also a candidate for the said office. As mandated by Article 140A(2) of the Constitution the elections were held by the Election Commission of Pakistan (the respondent No, 1) and importantly for present purposes, under a Code of Conduct issued by the Commission for purposes of the elections. On the very day of the election the respondent No,3 filed a written complaint with the Election Commission against the petitioner that the latter came to the polling station along with official protocol and sat there throughout the polling. It was alleged that this was in violation of the Constitution, the Sindh Local Government Act, ("2013 Act") and the Sindh Local Councils (Election) Rules, 2015 framed thereunder ("2015 Rules"). It was prayed that suitable action be taken against the petitioner. On this complaint, the Election Commission ultimately made the impugned order dated 29,12.2016 in terms whereof the petitioner was disqualified from membership of the Sindh Assembly. The reasons for the order followed subsequently. It is this order that is challenged in this petition. 2. Learned counsel for the petitioner submitted that on the aforementioned complaint the Election Commission issued a show-cause notice to the petitioner dated 02.09.2016. It was submitted that neither the complaint nor the show-cause, notice referred to the Code of Conduct. The petitioner filed his reply, stating therein that he had been appointed as the polling agent under Rule 26 of the
---
## Page 2
2015 Rules. This was in accordance with law, and the petitioner attended the election solely in that capacity and for such purpose. Thus, his presence at the polling station was perfectly legitimate and lawful. All allegations to the contrary were denied, including in particular the alleged misuse of official protocol. It was submitted that the respondent No, 3 had filed an election petition challenging the election of Mr. Ali Asghar, which was (at the time of hearing) pending before the election tribunal constituted under the 2013 Act. The complaint at hand was nothing but a mala fide attempt to abuse the process of the law to cause harm and injury to the petitioner, and in furtherance of the respondent No, 3's attempts to get the office of Chairman by any means necessary. 3. Learned counsel submitted that Rule 26 allowed a candidate to appoint any person as his polling agent, and the petitioner fell squarely in that category. The 2015 Rules had the force of law, being framed by the Provincial Government in exercise of statutory powers. But that could not be said of the Code of Conduct published by the Election Commission and on the basis of which (as explained shortly) the impugned order was made against the petitioner. The Code of Conduct was not "law", and this constituted the heart of the submissions by learned counsel. Rule 3 of the 2015 Rules empowered the Election Commission to "exercise its powers and perform its functions in accordance with the Act and these rules ... and make such consequential orders as it may consider appropriate for ensuring fair election" but, learned counsel contended, that did not empower it to issue any Code of Conduct, or at least any such code as had the force of law. Learned counsel submitted that Rule 26 did not exclude any category or class of persons (such as, e.g. members of the Provincial Assembly) from acting as polling agents, and therefore the appointment as such of the petitioner was in accordance with law. Anything to the contrary in the Code of Conduct would have to give way to the Rule, as it (and not the Code) was statutory in nature, had the force of law and was therefore "superior". Insofar as the Code was concerned, there was no specific statutory power that allowed its issuance by the Election Commission. 4. Referring to the Code of Conduct (which was issued in Urdu, and set out a number of constitutional and statutory provisions in its preamble under which it was statedly issued) learned counsel submitted that it was divided into three parts: (i) "general" provisions, (ii) "special" provisions, and (iii) provisions that applied on the polling day itself. Referring to the reasons issued by the Election Commission for the impugned order, learned counsel submitted that the Commission had placed reliance on para 26 of the Code of Conduct. That para fell in the "general" part of the Code and provided that various persons specified therein, including members of the Provincial Assembly, could not take part in the election campaign leading up to the elections, nor could they visit or tour any union council, union committee etc. during the elections. Learned counsel submitted that this para manifestly did not apply in the facts and circumstances of the present case, since the case sought to be made against the petitioner related solely to the election or polling day itself. Referring to the reasons, learned counsel submitted that in the first paragraph thereof the Election Commission had recorded that in his complaint the respondent No,3 had sought the petitioner's disqualification from membership of the Provincial Assembly. It was submitted that this was clearly erroneous, as was apparent even from a bare perusal of the complaint itself. It only made general and vague allegations and did not particularize or specify the action that was to be taken. Referring further to the reasons given for the impugned order, learned counsel submitted that the petitioner had not been found or held guilty of contempt of any order of the Election Commission. Rather, he had been found guilty of having exerted undue influence and hence liable in terms of various sections of the 2013 Act that were referred to in the reasons. Learned counsel submitted that the facts did not at all disclose any undue influence having been exercised by the petitioner. In particular no case had at all been made out in terms of sections 55, 58 and 59 of the 2013 Act, which were specifically relied upon in the reasons. In any case, it was
---
## Page 3
submitted, the Election Commission had no jurisdiction in respect of the offences set out in those sections. That, as per the 2013 Act, lay elsewhere, with the Court granted jurisdiction to try offences in respect of the said sections. Learned counsel strongly contended that in any case, even if at all any case had been made out the Election Commission did not have the jurisdiction to disqualify the petitioner from his membership of the Sindh Assembly, which was the sole penalty imposed and action taken. The impugned order was liable to be quashed as such. Learned counsel also relied on certain case law. 5. Learned counsel for the respondent No, 3 submitted that the respondent was not seeking any relief in respect of the election itself which had been challenged by him in separate proceedings before the election tribunal and would be decided in due course in accordance with law. Rather, what the respondent was aggrieved by, and had complained against, was the unlawful conduct of the petitioner in his blatant violation of the Code of Conduct. Para 26 thereof, as applied by the Election Commission, was attracted, and the petitioner in breach thereof had been unlawfully present at the polling station. The petitioner had exerted undue influence and was thus liable to action in accordance with law, which included action for breach of the Code of Conduct, enforcement of which was very much within the jurisdiction of the Election Commission itself. Learned counsel further contended that in disqualifying the petitioner from membership, the Election Commission had in effect applied Article 63(1)(g) of the Constitution, which had been breached by the petitioner. Therefore his disqualification was both justified and lawful. Learned counsel also referred to Articles 219 and 222 of the Constitution and on a conjoint reading of the same submitted that the Election Commission had the jurisdiction to issue the Code of Conduct, as well as the power to enforce it. Reference was also made to various sections of the Representation of Peoples' Act 1976 ("1976 Act"), which learned counsel submitted had been made applicable to elections under the 2013 Act by reason of section 71 of the latter. Having regard to all of these provisions, learned counsel submitted that the petitioner had failed to adhere to the 1976 Act and the Code of Conduct, and was therefore rightly disqualified by the Election Commissioner by virtue of section 100 read with section 99(1A)(I) of the 1976 Act. Even the mere presence of the petitioner at the polling station was sufficient to constitute the offence of undue influence, and such presence was admitted. Learned counsel also referred to certain case law in support of his submissions. It was submitted that a very grave offence had been committed by the petitioner, who was a sitting MPA and was thus liable to be visited by the severest of sanctions, which was what the Election Commission had done. It was prayed that the petition be dismissed. Learned AAG as also the learned Law Officer from the Election Commission adopted the submissions made by learned counsel for the respondent No, 3. 6. We have heard learned counsel as above, considered the record and the case law relied on. On 12.01.2017, one of the dates on which this petition was taken up, the question of interim relief came up. While granting such relief, we had made a detailed order, which, inter alia, sought to crystallize what were, in our view, the issues raised by this petition. It will be convenient to set out the order in material part as it will help in spelling out the terms in which we decide this petition: "Learned counsel for the Petitioner submits that the impugned order of the learned Election Commission is without jurisdiction inasmuch as even if the allegations made against the Petitioner by the Respondent No,3 are found to be correct (as to which learned counsel reserves his position), the order of disqualification could not have been made. Learned counsel for the respondent No,3, without prejudice to his right to file proper/detailed reply, opposes the grant of any interim relief on the- basis of the aforementioned Code of Conduct as also by reference to the various provisions referred by the learned Election Commission in the detailed reasons. Reference is made in particular to para 2 of the Code of Conduct. Learned Counsel submits that the learned Election Commission did have sufficient jurisdiction to make the order of disqualification. Learned Counsel
---
## Page 4
has also referred, inter alia, to Article 63, clause (1) of the Constitution and in particular places reliance on paragraph (g) of the said clause. We have considered the matter. Whatever is stated in this order is of a tentative nature and only for the purpose of determining the question of interim relief. It is entirely without prejudice to the case on the merits of the parties and indeed also to such parawise comments, if any, as may be filed by the Election Commission to this petition. In para-2 of the afore mentioned Code of Conduct the Election Commission has directed that any violation of the Code could entail action against the concerned person in terms of Article 204 of the Constitution as well as section 103A of the Representation of the People Act, 1976. We have seen these provisions. The first relates to contempt of Superior Courts and is sought to be applied inasmuch as such power to punish for contempt of the Election Commission. With respect, we are unable to see prima facie as to how, even if the petitioner is guilty of having violated the Code of Conduct and is therefore liable to action for contempt in terms of para 2 thereof, he could be disqualified from being a member of Sindh Assembly on such basis. Article 63 of the Constitution is of course made applicable to the Provincial Assemblies by virtue of Article 127 of the Constitution. Reference in the present context may also be made to Article 113. Clause (2) of Article 63 states that if a question arises whether a member, as presently relevant, of the Sindh Assembly is disqualified from being a member of the said Assembly, the matter would be considered by the Speaker. Unless the Speaker is satisfied that no case is made out, he shall refer the matter within 30 days to the Election Commission. In case such determination is not made by the Speaker within the stipulated period then clause (2) provides that the matter shall be deemed to be referred to the Election Commission. Clause (3) of Article 63 then provides that once the matter is so before the Election Commission, it shall decide the same within 90 days and if it concludes that the member stands disqualified, then his seat shall stand vacated. In the present matter, on the record as presently available before us, it appears that the matter has reached the learned Election Commission not by means of the specific route prescribed by the Constitution, but has come before it in terms as already noted above. Furthermore, it appears that no proceedings as such for contempt were taken against the petitioner nor any order/determination made by the Election Commission for any alleged contempt. It appears that the learned Election Commission straightway proceeded on the complaint/ representation and made the order that is impugned before us. Although in the detailed reasons, the learned Election Commission has made reference to certain other provisions as well, with respect prima facie we are not satisfied as to how those provisions conferred jurisdiction on the learned Election Commission to disqualify a person from being a member of a Provincial Assembly, especially in the context of facts and circumstances such as appear to apply in the present matter. With respect, it prima facie appears to us that the jurisdiction conferred upon and available to the learned Election Commission for purposes of disqualification of a member of a Provincial Assembly is, in the context of the present facts and circumstances, limited to what is provided in the Constitution itself in terms of Article 63 read with Articles 113 and 127. We emphasize that the observations made today are only tentative in nature and made for the limited purpose now before us, i,e,, whether or not the petitioner has made out a case for interim relief. Prima facie we conclude that such a case has been made out. The other ingredients for such relief also clearly apply. [Thin the next date the impugned order is suspended and accordingly no notification of the nature as referred to therein shall be issued." We proceed to consider the submissions made by learned counsel and to decide the petition in terms of the above. 7. The most immediate way of challenging an election to a legislative seat in the National or a Provincial Assembly is of course to file an election petition, as provided for in terms of Article 225 of
---
## Page 5
the Constitution read with the relevant provisions of the 1976 Act. That petition has to be decided by an Election Tribunal constituted under the 1976 Act. While the Election Commission and Chief Election Commissioner have an important role to play in the constitution etc. of the said Tribunal they do not as such have any jurisdiction to decide the election dispute raised by the election petition. This is solely within the jurisdiction of the Election Tribunal. Any such petition has to be filed within a period of 45 days from the date of the publication in the Official Gazette of name of the returned candidate, and of course that period has long since expired in the case of the petitioner. In addition, the Election Commission has the jurisdiction in terms of section 103AA of the 1976 Act to declare the poll in any constituency to be void (subject to the specified conditions having been met), but this power can be exercised within the period specified in subsection (2), and that also has long since expired in the present case. 8. The jurisdiction that is conferred on the Election Commission to disqualify a legislator is for the question of disqualification to come before the Commission in terms as provided for in the Constitution, which have been identified in the order reproduced above. To recapitulate: the disqualifications contained in Articles 62 and 63, which apply to Federal legislators, have been made applicable to Provincial legislators by reason of Article 127. Clauses (2) and (3) of Article 63 - provide as follows: "(2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission. (3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant." Thus, in relation to a Provincial Assembly, if a question is found to have arisen as to whether a member of that Assembly has become disqualified from being a member, the Speaker of the said Assembly is to refer the question to the Election Commission in terms of clause (2), and upon such referral the latter is to decide the same in terms of clause (3), with attendant consequences, if any. The basis on which the said question can arise is to be found, and is only to be found, in any of the clauses of Articles 62 and 63, and not elsewhere. The reproduction (to any extent) of the said clauses in subsections (1) and (1A) of section 99 of the 1976 Act is only for purposes of the election process, such as, e.g., scrutiny of nomination papers, or any declaration to be made by the Election Tribunal in a dispute brought before it in an election petition. For present purposes, it is important to note that in neither of those cases, and for that matter even under section 103AA, is there any jurisdiction conferred on the Election Commission in relation to the disqualification of the legislator. 9. It follows that in our view the only manner that the Election Commission can lawfully exercise jurisdiction with regard to whether a legislation is disqualified from being a member of an Assembly is if, and when, the question is brought before it in terms of clauses (2) and (3) of Article 63. Quite obviously, the facts and circumstances of the present case do not at all meet the constitutional requirements. They are about as far removed from the constitutional mandate as can be imagined. A matter came before the Election Commission on a complaint made by the Respondent No, 3 in relation to local government elections and even there, as rightly pointed out by learned counsel for the petitioner no relief of disqualification was sought. Of course, even if such relief had been sought, in our view the Election Commission would not have the jurisdiction to grant it. It follows therefore that the impugned order, inasmuch as it does purport to disqualify the petitioner, was made in Circumstances and a manner that lay beyond, the jurisdiction of the Election Commission. Whatever it was that the Election Commission could have done in the facts
---
## Page 6
and circumstances before it, in our view, with respect, it certainly could not have disqualified the petitioner from his membership of the Sindh Assembly. 10. Furthermore, even if the petitioner violated the Code of Conduct established by the Election Commission for the election of Chairman/Vice Chairman, or the petitioner committed any electoral offence under the 2013 Act that did not allow, or confer any jurisdiction on, the Election Commission to disqualify the petitioner from his membership of the Sindh Assembly. With respect, the Election Commission appears to have disqualified the petitioner as a punitive measure for having, in the Commission's opinion, violated the terms of the Code of Conduct. We consider in a moment whether, and if so what, action could have been taken by the Commission for any such violation. However, that action certainly does not extend to disqualifying the petitioner. 11. The question raised by learned counsel for the petitioner, i,e,, whether any code of conduct issued by the Election Commission in relation to an election is in and of itself, and/or whether and if so how and to what extent it is enforceable as such by the Election Commission itself is an important question that requires serious and careful consideration. However, as will shortly be seen, it is not necessary to answer this question here, and we leave it open for consideration in an appropriate case. We also leave open the question that, in our view, arises on account of the Election Commission quoting various constitutional and statutory provisions in the preamble of the Code of Conduct at hand, as giving it the requisite legal authority to issue the said Code. With respect, we are prima facie not satisfied that all of the provisions cited were applicable. But it is not necessary to address this question here either. We may note in passing that in urging an answer in favour of the Election Commission, learned counsel for respondent No, 3 read out certain passages from a Division Bench judgment of this Court (authored by one of us) reported as Syeda Waheeda Shah v. Election Commission of Pakistan and others PLD 2013 Sindh 117. It is not necessary to refer to those passages since in our view, in the present facts and circumstances, the Code of Conduct issued for the election under consideration was in any case very much part of the statutory and electoral framework laid down in the 2013 Act and 2015 Rules, and enforceable as such by the Election Commission. It is to consider this aspect that we now turn. 12. As noted above, learned counsel for the petitioner submitted that the Code of Conduct was not referable to either the 2013 Act or the '2015 Rules, and in particular to Rule 3 of the latter. With respect, we are unable to agree. The reason is that the process and procedure of election to the general (and other seats) of the various local bodies is made applicable also to the election of Chairman/Vice Chairman (see, e.g.. Rule 55-A in this regard). Now, the forms of the nomination papers to be filed are appended to the 2015 Rules. In each case, the forms require that a candidate must make a declaration on oath that includes the following: "I hereby assure that I shall abide by the Code of Conduct issued by the Election Commission of Pakistan". In this regard, reference may be made to Forms III and III(A). Thus, not merely do the 2015 Rules expressly recognize (and, arguably, require) that the Election Commission shall issue a Code of Conduct, the candidate is required, by mandate of law, to declare on oath that he would abide by the said Code. In such a situation, it is not possible to accept the submission by learned counsel for the petitioner that the Code of Conduct was not issued under or in relation to the 2013 Act or the 2015 Rules, or the elections or electoral process envisaged thereby or for the purposes thereof. It clearly and most certainly was, and hence the Code did have the quality of law" which learned counsel denied applied to it. 13.Equally, and obviously, the Code of Conduct applied not merely to a candidate but also to any election or polling agent appointed by the candidate. It would render the electoral process and framework envisaged by the 2013 Act and the 2015 Rules unworkable if the principal (i,e,, the candidate) were bound by the Code of Conduct his agents were not. Such a result would, in our view, be absurd. Therefore, in our view, the petitioner was bound by the Code of Conduct since on
---
## Page 7
his own showing he was the polling agent for a candidate. This immediately leads to the question as to the power, if any, of the Election Commission to take action in case the Code was violated by any person to whom it applied. Here,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.