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Petitioner: Awais Younas VS Respondent: Federation of Pakistan, etc.
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title: Awais Younas vs Federation of Pakistan, etc. Case No.: W.P.8222/2015 Date of Judgment:2015-03-30 Reported As: 2015 LHC 5328 Result: N/A
Judgment Syed Mansoor Ali Shah, J:- Petitioners, who are registered voters of various wards of Cantonment Board Walton, Lahore, have challenged the constitutionality and legality of Section 14 of the Cantonment Local Government (Elections) Ordinance, 2002 ("Ordinance") whereby local government elections in Cantonment are to be held on non- party basis. The elections to fill the general seats in Wards of Cantonment Boards (local government) have been scheduled for 25.04.2015 vide Notification dated 20.03.2015 issued by the Election Commission of Pakistan, which has necessitated the filing of the instant petition. 2. It has been argued by the petitioners that Local Government Elections on non-party basis under Local Government Act, 2013 have already been struck down being opposed to Article 17(2) of the Constitution, by a Division Bench of this Court vide judgment reported as "Pakistan Peoples Party v. Government of Punjab and others" (PLD 2014 Lahore 330), therefore, on the same analogy, Section 14 of the Ordinance also ought to be struck down. They also pointed out that the Provincial Government did not challenge the said judgment which has, therefore, attained finality. 3. Learned Deputy Attorney Generals for Pakistan, as well as, learned counsel for the respondent submit that Cantonment is a federal subject and therefore elections to the Cantonment Local Government are not constitutionally protected under Article 140A of the Constitution. They, however, had no convincing explanation to render regarding the vires of Section 14 on the touchstone of Article 17(2) of the Constitution. 4. Parties have been heard.
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5. In order to determine the constitutionality of Section 14 of the Ordinance, it is important to first understand the constitutional significance of a political party in a liberal democracy and then examine Section 14 of the Ordinance against a cluster of fundamental rights under Articles 15, 16, 17, 19 and 19A of the Constitution. 6. In a democracy, every citizen can participate in the democratic process by freely acceding information about political issues, by openly expressing their own opinion on public affairs, by formulating expectations, proposals or requirements without fear of repression, by voting in elections, by engaging in civil society organizations or political parties, or by standing up as a candidate in democratic elections. In this way, democracy is the "government of the people, by the people, for the people.1" The following basic elements are present in any democratic system: The governing bodies have to be occupied by elected authorities, who are accountable to the voters. Free and fair elections have to take place regularly. All adults have to possess the right to vote and to be elected to political office. Freedom of opinion has to reign without anybody being persecuted for freely expressing his opinion. Free access to alternative and pluralistic sources of information should be guaranteed. The right to form independent associations, groups of interest and political parties must exist so that the previously mentioned rights can be executed.2 7. "In a democracy, most if not all citizens should be involved in political activities. However, a direct democracy where every citizen is directly involved in all political decisions is not possible within modern mass societies. This is why a modern democracy needs institutions and organisations that ________________________________________ 1 Abraham Lincoln at the Soldiers' National Cemetery in Gettysburg, Pennsylvania, November 19, 1863. 2 Political Parties- Functions and Organisation in Democratic Societies. Wilhelm Hofmeister/Karsten Grabow, Korad Adenauer Stiftung. {{ FOOT NOTES }} Represent the will and the interests of the citizens as authentically as possible. These can be associations, informal groups or non-governmental organisations. In particular, the political parties carry out such a representative function. They offer to the citizens the possibility to influence politics and political decisions. They are an important instrument and institution of politics. Without political parties, a modern representative democracy is not conceivable. Only the parties ensure that the citizens are permanently capable to act politically. They articulate and integrate different interests, visions and opinions. They are also the main source for the recruitment of political elites.3" " 'All politics are local,' as the late Speaker of the United States Congress, Tip O'Neill, once observed. At the same time, when functioning properly, political parties help place citizens' local concerns in a national context. Parties can mediate. They can create common ground. Parties can create grounds for compromise and thus they can help societies unite and remain united. Political parties
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are not perfect but no other national institution can serve as well to aggregate and represent citizens' interests or impede government fiat. In over two centuries, there has been no democracy without political parties. When public confidence in political parties is compromised, the entire democratic process suffers. In all sustainable democracies, the party system must be deeply and durably entrenched in the fabric of society." 8. Political parties perform an important task in government. They bring people together to achieve control of the government, develop policies favorable to their interests or the groups that support them, and organize and persuade voters to elect their candidates to office. "At its simplest, a political party is an organization which allows like-minded people to work together to promote certain ideas and achieve certain goals. The co-operation and collaboration of people with different experiences, skills, knowledge and views within a political party is what enables that party to develop policies across the whole range of concerns which the national interest requires.5" 9. Political parties can serve multiple functions. They are necessary to build and aggregate support among broad coalitions of citizens' organizations and interest groups; to integrate multiple conflicting demands into coherent policy programs; to select and train legislative candidates and political leaders; to provide voters with choices among governing teams and policies; and, if elected to office, to organize the process of government and stand collectively accountable for their actions in subsequent contests. Representative democracy is impossible without multiparty competition. Political parties accordingly function uniquely and constitute a cornerstone of democratic society. The long list of their potential functions can be summarized under five key headings: 1) the integration and mobilization of citizens; 2) the articulation and aggregation of interests; 3) the formulation of public policy; 4) the recruitment of political leaders; and 5) the organization of parliament and government6. Some of the fundamental functions of a political party are as follows:- They articulate and aggregate social interest: Parties express public expectations and demands of social groupings to the political system (=function of political opinion-making). They recruit political personnel and nurture future generations of politicians: They select persons and present them as candidates for elections (=function of selection). They develop political programmes: Parties integrate various interests into a general political project and transform it into a political programme, for which they campaign to receive the consent and support of a majority (=function of integration). They promote the political socialization and participation of citizens: Parties create a link between citizens and the political system; they enable political participation of individuals and groupings with the prospect of success. (=function of socialization and participation). They organize the government. They participate in elections to occupy political charges. Normally in party democracies, a good part of government authorities arise from political parties (=function of exercising political power). They contribute to the legitimacy of the political system: in establishing the connection between citizens, social groupings and the political system, the parties contribute in anchoring the political order in the consciousness of the citizens and in social forces (=function of legitimating).7
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10. Existence of a political party is integral to a representative democracy. The advantages of having a political party are as follows;8 i. Aggregate the many and diverse interests in society into reasonably clear political programmes; Parliament.UK. ii. Simplify electoral choices for citizens; Select candidates for election to Parliament and other bodies; Political parties nominate candidates for political office. They narrow the field from a multitude of choices to a manageable few credible candidates. This simplifies the voters' role and brings a certain order to what could be a chaotic electoral process; iii. Provide coherence to Parliamentary parties thereby facilitating government. Parties also bring order to the process of policymaking. As party members, individual politicians have a ready-made group of allies that will usually cooperate with their efforts to pass and implement legislation. In addition, party alliances close the gap between the legislative and executive branches. While separated by the Constitution, the existence of political parties narrows the distance between the branches and helps them work together; iv. Enable ordinary citizens to participate in the policy-making process; Political parties inform and energize their members. They send out brochures, run media campaigns, knock on doors, and call voters on the phone. Individual candidates can do the same thing, but parties maintain elaborate networks of state and local offices that can be immediately pressed into the service of a candidate once the party nomination is secured. In addition, parties have fundraising apparatuses in place that simplify their candidates' ability to finance their campaigns; v. Help to provide a broad political education. The political parties educate public opinion through their propaganda. They publish newspapers, magazines, journals and other printed literature for popularizing their programmes and politics. Moreover, they have a host of speakers who explain and defend party programmes through Press and Platform. It is thus by means of Press and Platform that political parties impart education to the people. The political discussion by parties enables the voter to find the truth for himself. They raise issues, present facts, analyze them and present alternative solutions. The voter is gripped with the issues and can choose the solution that he considers best; vi. A political party acts as a brand, because it is associated with certain values, ideas or actions the public in general should know. In broad terms, what people who associate themselves with that brand, stand for; vii. By seeking to appeal to a wide range of voters political parties are able to act as a counterweight to special interest groups which could otherwise seek to manipulate government to their own benefit; viii. Parties can help citizens "who are on the losing side in elections and policy debates to accept defeat". They do this by encouraging an understanding that while their party may lose now, it may win on another occasion: this keeps politics "non-violent"; ix. Monitor the Opposing Party in Power. Parties also serve as critical watchdogs for the public. The
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adversarial relationship between the major parties ensures that the party out of power will keep a close eye on its opponent and notify the public of any wrongdoing or policy misstep; x. Formation of Public Opinion. Political parties formulate public opinion. In democracy, every adult enjoys the right to vote. Every citizen is to express his or her opinion at the time of election. They place clear alternatives before the people. Citizens rally round different political parties and public opinion is thus organized into definite channels. Political parties in this way provide an effective means for an organized expression of views on vital question of public policy; xi. Public Spiritedness. Political parties arouse popular interest in public affairs. It is due to this propaganda of political parties that every party system person in modern democratic times appears to be attached to the public life of his or her country; xii. Essential for Success of Parliamentary Democracy. Political parties make parliamentary democracy a success. The majority party forms the government and the minority parties form the opposition. The opposition criticizes the policy of the government and thereby exposes the weakness, inefficiency and drawbacks of the government. It seeks to defeat the party in power and tries to step into its shoes by winning over a majority in support of its policy. The opposition plays an important role in the sense that it checks the despotic or arbitrary tendency of the government and makes it respond to popular needs; xiii. Link between the Government and the People. The political party belonging to the majority group in the legislature serves to maintain a link between the government and the people. Its rank and file explain and popularize the policies, pursued by the government. The political organization maintains a continuous connection between the elected representatives and thus makes the government really representative. There is a greater harmony between the people and the government; xiv. Co-ordination in different Organs. Political parties serve to bring about a sort of coordination in the working of different organs of the government. They have played this role in the U.S.A. Where the government is based on the principle of 'separation of powers.' They act as a unifying force. It makes for a continuous policy and continuity in administration. The executive and the legislature co-operate and formulate a unified policy; xv. Political Parties create unity in the Nation. Every party has to formulate programme that can appeal to all the voters, or at least to a majority. The class differences, therefore, get reconciled; 11. Political parties are, therefore, a mechanism by which people of any background can be actively involved in the task of shaping policy and deciding how society should be governed. While they are not perfect organizations they are essential for the effective functioning of our democracy. Without the support of political parties it would be difficult for individuals, as legislators or as members of the Executive, to organize themselves effectively for the task of promoting the national interest.9 Importance of political parties in a modern constitutional State cannot be overemphasized, the working of entire governmental machinery depends upon them. The fact of the matter is that political democracy cannot be conceived of without political parties. They put into practice the public opinion which they have been instrumental in moulding and expressing. They help in the formulation and expression of a general will which is the core of democracy.
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12. Party system implies an elective and a representative system of government. It is through this institution that the government can be made answerable to the people and therefore responsive to the needs of the general masses and the community as a whole rather than a section of it. The party system is based on the assumption that the people are rational beings, are able to exercise their franchise wisely and elect good government for themselves. Thus it provides a method for peaceful change of government without violent revolutions and coups. It provides the much desired flexibility in the government structure. 13. Political parties in order to be effective, require to engage in local political activity. In 2004 a Report by Alexandra Runswick10 argued that the engagement of local parties with the electorate is important because: a. personal canvassing by local parties meets "the electorate's basic desire to meet the people from the party they are being asked to vote for": this, she argues, leads to greater responsiveness and greater medium to long-term loyalty than canvassing by post or by national advertising; and b. a strategic campaign of reaching out to the community would enable parties to address their lack of diversity. Local parties will need to recruit, mentor and develop the skills of people from under-represented groups if those people are to be future council or parliamentary candidates and give the electorate a greater choice; and c. Personal canvassing "forces both the electorate and members of political parties to ... See each other as fellow citizens", and provides a corrective to the cynicism of much media coverage of politics. 14. Preamble to The Political Parties Order, 2002 ("Order") is illustrative and states that the need for a political party "is intended to create a political environment conducive to the promotion of a federal democratic system as enshrined in the Constitution...Political parties play a pivotal role in fostering a constitutional, federal democratic political culture and practice of democracy within the political parties will promote democratic governance in the country for sustaining democracy." "Political party means an association of citizens or a combination or groups of such associations formed with a view to propagating or influencing political opinion and participating in elections for any elective public office or for membership of a legislative body".11 Cornelius CJ in Abul Ala Maudoodi vs. Govt of West Pakistan12 defined the expression 'political party" to mean: The ordinary conception of a political party includes a right within the framework of the Constitution to exert itself through its following and organization, and using all available channels of mass communication, to propagate its views in relation to the whole complex of the administrative machine, including the legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself. 15. The importance of political parties was highlighted by Saad Saood Jan, J, who had remained actively associated with the preparation of the draft of the 1973 Constitution,13 in Muhammad Nawaz Sharif Case14 in the following manner: The Constitution Committee of the National Assembly which was entrusted with the task of
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preparing the draft was of the opinion that the right of freedom of association as guaranteed in the earlier Constitutions of 1956 and 1962, qualified as it was with a number of restrictions, did not give sufficient protection to the political parties against the Executive which in the past had no hesitation in limiting or stifling their ordinary activities, particularly if these were directed against the party in the Government. It was felt that for the democracy to flourish in the country, it was essential that the political parties should be entirely unfettered except when they worked against the sovereignty and integrity of Pakistan. The experience of 1962 Constitution was before the Committee for despite the fact that it guaranteed freedom of association severest possible checks were placed on the otherwise legitimate functions of political parties. Some of the parties were even banned. Article 173 of the said Constitution stated that no candidate at an election could hold himself, inter alia, that he was a member of a particular party. This was tantamount to denying to the political parties a place in the political process in the country. In order to free the political parties from the strangle-hold of the Executive and permit the citizens freedom of thought and action in political matters it was decided by the Constitution Committee to make a separate and independent provision so far as the political parties were concerned. 16. In the same case, Saeeduzzaman Siddiqui J held that a 'political party' is a voluntary association of persons, formed with the object of propagating a definite political opinion/view on a matter of public importance having an ultimate aim to get into power seat of government through the process of election, in order to give effect to its programme. Muhammed Haleem CJ in Benazir Bhutto case15 expressed: A political party has its significance in the context of the political system provided by the Constitution. Our Constitution is of the pattern of parliamentary democracy with a cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority. Bagehot called it 'a hyphen that joins, a buckle that fastens, the executive and legislature together'. It formulates the general policy of the Government and is collectively responsible to the Parliament for that. Apart from this general function of coordination and leadership it exercises actual executive and legislative functions. Our constitution envisages democracy as ethos and a way of life in which equality of status, of opportunity, equality before law and equal protection of law obtains. It has its foundation in representation; it is not a system of self-government, but a system of control and limitation of government. A democratic party is usually identified by the manner of selection of its leaders and by the fact that the power of the government functionaries is checked and restrained. In a democracy the role of the people is to produce a government and, therefore, the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote. Fundamentally democracy rests upon the idea of freedom. Parliamentary Government is a government of the party and a party government is a vital principle of a representative government. The political party is a connecting link between the Executive and the Legislature, between the Cabinet and the Parliament. It is also a connecting link between the Cabinet and the people and between the Parliament and the people. For this reason the political parties are necessary and important features in a parliamentary democracy. They are important because the group victorious at a general election becomes the government. In a nutshall a parliamentary democracy depends for its success on the organization of political parties and its disciplined support of parliamentary majority is sine qua non of Cabinet Government composed of the Prime Minister and the Ministers from the majority party. They thus provide leadership to public
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offices through the elections. They are now necessary part of a democratic government. Rival parties make elections meaningful by giving voters a choice among candidates who represent different interests and points of view. The party or parties that are out of power serve as a "loyal opposition" as understood in parliamentary democracy. That is, they criticize policies and actions of the party in power. In this way the party in power is called on to justify its actions and is made responsible to the people. In American system, 'a political party is a voluntary association, formed of the three will and unrestrained choice of those who compose it. No man is compelled by law to become a member of a political party, or after having become such, to remain a member. He may join such a party for whatever reason seems good to him, and may quit the party for any cause, or without cause. It has been said that political parties originated in the United States with the adoption of the Federal Constitution.' Political parties are institutions of very great importance under our form of government. They are, in fact, the effective instrumentalities by which the will of the people may be made vocal, and the enactment of laws in accordance therewith made possible. So potent have they become in determining the measures and in administering the affairs of government that they are now regarded as inseparable from, if not essential to, a republican form of government. The people have an inherent right to form, organize and operate political parties and to reorganize an old political party. This is included in the right of suffrage. It has been characterized as an inalienable right…
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