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Petitioner: Aam Loeg Itehad & another VS Respondent: The Election Commission of Pakistan & others
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Maqbool Baqar, Munib Akhtar Title:Aam Loeg Itehad & another vs The Election Commission of Pakistan &
others Case No.: Civil Petition No.479-K of 2020 Date of Judgment:2021-12-16 Reported As: 2021 SCP 428, PLD 2022 Supreme Court 39 Result: Appeal dismissed Judgment ORDER Munib Akhtar , J.: This leave petition is being disposed off as an appeal; see below . The petitioners challenge the judgment of the learned High Court dated 12.06.2020, which is reported as Aam Log Ittehad and another v Election Commission of Pakistan and others PLD 2020 Sindh 616. The first petitioner is a political party and the second petitioner , a retired Judge of this Court of high stature and great distin ction, is its member . The matter was argued by the second petitioner . 2. It was submitted that the petitioners filed a petition in the High Court under Article 199, seeking writs in the nature of quo warranto against the Respondent Nos. 2 to 5. These respondents had been appointed as members of the Election Commission of Pakistan (Respondent No. 1; hereinafter "the Commission") after the 22nd Amendment (2016) to the Constitution, in terms of Article 218 of the Constitution. It will be convenient to set out clauses (1) and (2) of the said Article: "(1) For the purpose of election to both Houses of Majlis-e -Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article. (2) The Election Commission shall consist of- (a) The Commissioner who shall be the Chairman of the Commission; and (b) four members, one from each Province, each of whom shall be a person who has been a judge of a High Court or has been a senior civil servant or is a technocrat and is not more than sixty-five years of age, to be appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) or Article 213. Explanation.- "senior civil servant" and "technocrat" shall have the same meaning as given in clause (2) or Article 213."
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The learned petitioner explained that the Respondent Nos. 2 to 4 were retired Judges of respective High Courts whereas the Respondent No. 5 was a retired senior civil servant. It may be noted that the Respondent Nos. 2 and 5 have since retired; the other two respondents continue to hold office. By far the most important thrust of the submissions made was that the retired Judges could not have been appointed as members of the Commission on account of the bar contained in clause (2) of Article 207. An objection was also taken as to the appointment of the Respondent No. 5. Article 207 falls in Chapter IV of Part VII of the Constitution, which relates to the Judiciary . Chapter IV contains provisions applicable generally to Judges of the Supreme Court and the High Courts. Clause (2) of Article 207 provides as follows (emphasis supplied): "A person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissioner or of Chairman or member of a law commission or of Chairman or member of the Council of Islamic Ideology , before the expiration of two years after he has ceased to hold that office." 3. The case of the learned petitioner , in essence, was that the three retired Judge s could not be members of the Commission because, as on the dates of their respective appointments, the two year period had not yet elapsed. We may note that this is the admitted position, and there is no factual dispute as regards any of the matters taken up by the petitioners. 4. Expanding on his basic submission, the learned petitioner submitted that Article 207(2) provides for four exceptions to the bar contained therein. The first relates to a "judicial or quasi-judicial office", one to the Chief Election Commissioner and the last two to members of a law commission or the Chairman or member of the Council of Islamic Ideology (herein after "CII"). If the appointment of a retired Judge was to any of the offices within the exceptions then the appointment could be made even within the initial two year period. However , beyond that the bar was absolute and brooked of no other exceptions. Appointment as a member of the Commission was not within any excepted categories. Hence, it was contended, the appointment of the Respondent Nos. 2 to 4 was ultra vires the Constitution and the petitioners were entitled to appropriate relief. 5. The learned petitioner submitted that the learned High Court erroneously concluded that the office of a member of the Commission was in the nature of a quasi-judicial office, and thus within the first of the excepted categories. On such basis, the appointments were held to be valid and the petition dismissed. The learned petitioner respectfully submitted that the learned High Court fell in clear error in coming to this conclusion. It was submitted that when considering whether an office was judicial or quasi-judicial, it was the inherent nature of the office that had to be considered. That was what determined whether it was judicial or quasi- judicial, and not any ancillary or collateral powers or functions that were, or could be, attached to the office or conferred upon it. It was submitted that the learned High Court had failed to keep this fundamental distinction in mind. The learned petitioner contended that the nature of the office was determinable by considering the basic constitutional duty that was imposed on the Commission. This is set out in clause (3) of Article 218, which provides as follows: "It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly , justly , fairly and in accordance with law , and that corrupt practices are guarded against." It was submitted that in its essence, this constitutional obligation was of an administrative or executive nature. It was certainly not judicial, and could not be regarded as quasi-judicial. The learned petitioner then referred to Article 219, which expands upon the duties of the Commission and lists the same in five clauses. The first four are of a specific nature, and the learned petitioner submitted that even a bare perusal of the same showed that they were administrative/executive (and that include d the appointment of Election Tribunals (clause (d)). The last clause is of a general nature and requires the Commission to perform "such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament)". It was submitted that even if such functions were of a judicial or quasi-judicial nature that could not alter the nature of the office of a member of the Commission. That was determinable on the plane of constitutional principle and could not be altered or affected by exercise of sub-constitutional authority , i.e., the power to legislate conferred on Parliame nt in terms of clause (e). Referring to the legislation in question, i.e., the Elections Act 2017 ("2017 Act") and its predecessor legislation the Representation of the People Act, 1976 ("1976
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Act"), the learned petitioner submitted that s. 9 of the former (which corresponds to s. 103AA of the latter) did confer a quasi-judicial jurisdiction on the Commission in terms of the said provisions. However , it was pointed out, both sections specifically deemed the Commission to be an Election Tribunal for purposes thereof. Thus, this was not a conferment of quasi-judicial functions on the Commission per se but rather in terms of a legal fiction that required the Commission to be treated (for strictly limited purposes) to be a forum (i.e., an Election Tribunal) that was a judicial body . The learned petitioner also referred to certain observations in the case law which according to him showed that the Commission did not have or exercise judicial functions. In any case, it was submitted, these functions were ancillary or collateral to the Commission' s main functions and could not alter the inherent nature of the office of a member . The learned petitioner also submitted that the position, and functions, of the Chief Election Commissioner ("CEC") could not possibly be any less than a member of the Commission. If the reasoning of the learned High Court were correct, then that would mean that the office of the CEC was also of a quasi-judicial nature. But that would then make redundant the specific mention of the CEC in Article 207(2); the express exclusion of this office would be otiose. Redundancy could not of course be lightly read into even a statute, let alone the Constitution. Thus, the learned High Court had erred in concluding that the office of a member of the Commission was quasi-judicial in nature. 6. As regards the Respondent No. 5 it was submitted that at the time of appointment his name was on the Exit Control List as being involved in a multi-billion rupee scam. Although he was subsequently acquitted his appointment was wholly inappropriate and could not have been made. Even if he (and the Respondent No. 2) since stood retired, the learned petitioner submitted that an appropriate declaration could still be made against them and they would be accountable for the salary and emoluments of office that had been obtained. It was prayed that the reasoning and conclusions of the learned High Court were erroneous in law and the impugned judgment merited being set aside. 7. Learned counsel who appeared for the Respondent Nos. 2 to and 4 took certain preliminary objections as to the maintainability of the petition before the High Court. It was submitted that the learned High Court had correctly concluded that the of fice of a member of the Commission was of a quasi-judicial nature. Reference was made to Articles 213, 215 and 218 in particular. Turning to the 2017 Act, learned counsel relied strongly on s. 9 but submitted that there were a number of other provisions also in that statute that clearly established that the nature of the office was quasi-judicial. Reference was made to ss. 8, 15, 126 and 236. It was also submitted that the High Court had in an earlier decision, reported as Major (Rtd) Abdur Rauf Khan v Justice (Rtd) Salah ud Din Mirza, Provincial Ombudsman and another 1998 CLC 1225, held the office of the Ombudsman to be of a quasi-judicial nature. In this case the same objection, i.e., that the two year period under Article 207(2) had not elapsed as on the date of appointment had been taken, but was repelled. Relying on this decision it was submitted that the position of a member of the Commission was no different or at least comparable. It was submitted that both the reasoning and conclusions of the learned High Court were correct and ought to be sustained. Learned counsel for the Respondent No. 5 emphasized that the said respondent stood retired but in any case had been acquitted of the criminal charges against him and at the time of appointment the presumption of innocence applied in his case and prevailed. It was submitted that he had no case to answer. The learned DAG adopted the submissions of both learned counsel and prayed that the leave petition be dismissed. 8. We have heard the learned petitioner and learned counsel and considered the relevant provisions and the record. We begin by setting out the conclusions arrived at by the learned High Court, which are conveniently summarized in para 22 of the judgment: "22. We would, therefore, sum up our findings on various constitutional and legal grounds agitated by the petitioners and the objections as to maintainability of instant petition raised by the respondents, in the following terms: (i) Petitioners have the locus standi to file instant constitutional petition in the nature of quo-warranto under Article 199(i)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 for the reason that any person, who may not be an aggrieved party, can invoke the constitutional jurisdiction of a High Court for issuance of a writ of
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quo warranto so that a High Court may examine the validity of an appointment to a public office, on constitutional and legal grounds. In view of our detailed finding as recorded in Paras. 9 to 12 hereinabove, the objections raised by the respondents with regard to maintainability of instant petition on various grounds, including: (i) locus standi of petitioners to file instant petition; (ii) mala fide on the part of the petitioners; (iii) laches; and (iv) lack of territorial jurisdiction of this Court, are hereby declared to be without any substance, hence over-ruled. (ii) Office of Election Commission of Pakistan is a "quasi-judicial office", therefore, bar of expiration of two years in terms of Article 207(2) of the Constitution of Islamic Republic of Pakistan, 1973, would not be attracted in the case of appointment of retired judges of Supreme Court and High Court(s). Therefore, a writ of quo-warranto cannot be issued against respondents Nos. 2 to 4 being the retired Judges of different High Courts on the grounds that their appointments have been made before expiration of two years from the date when they ceased to hold office as Judges of High Courts. Accordingly, writ against respondents Nos.2 to 4 is misconceived and not maintainable. (iii) As regards issuance of writ of quo-warranto against respondent No.5, a retired bureaucrat, no substantial constitutional or legal ground has been agitated, nor any sufficient material or evidence has been produced in support of the allegations of corruption, therefore, we are not inclined to conduct any inquiry or to make a probe into the allegations levelled against respondent No.5 while exercising constitutional jurisdiction under Article 199(i)(b)(ii) of the Constitution in the instant case. Accordingly, writ against respondent No.5 is not maintainable." We may note that the learned High Court has, in sub-para (ii), inadvertently referred to the "Office of Election Commission of Pakistan" being quasi-judicial. There is of course no such office (the Commission being a body), but the true meaning and intent is clear and we proceed accordingly. It will be seen that the preliminary objections taken before us were also raised before the learned High Court but were repelled. We are satisfied with the treatment of the same; therefore no further notice need be taken of them here. Furthermore, we are, with respect, also not inclined to take up the matter of the Respondent No. 5, both for the reasons that found favor with the learned High Court and that admittedly he stands retired. We turn therefore to the central question raised before us, and decided by the impugned judgment: is the office of a member of the Commission of a quasi-judicial nature? 9. The first point to make is that the inquiry to be undertaken must be focussed on determining the essence of the office. And, in determining its true nature (its very pith and substance, as it were), it must be remembered that the office is created by the Constitution itself. As the office sounds on the constitutional plane, an inquiry into its nature must examine the matter through constitutional lens. To focus exclusively , or even primarily , on the plane of (sub- constitutional) legislation may well becloud the issue. And, more fundamentally , such an approach would be premised (if only implicitly) on the assumption that Parliament can affect or even alter the nature of the office. That, in our view, cannot be correct. Unless the Constitution itself so provides or permits, or necessarily require, the nature of the constitutional office here involved cannot be subject to, or affected by, the objectives and goals (howsoever desirable or laudable) of the legislature. It must be kept in mind that the constitutional duty of the Commission is expressly shielded from legislative action. That duty, as corre ctly submitted by the learned petitioner , is categorically set out in clause (3) of Article 218. Thus, while Article 222 lists in some detail the sort of electoral laws Parliament is competent to enact, it concludes, very significantly , with the following words: "no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission under this Part". These words establish an array of powers and an area of activity that is constitutionally irreducible. (Of course, in the exercise of those powers and in conducting itself while performing its constitutional duties the Commission must act in accordance with the law as enacted. It is only when, and if, there is a clash or inconsistency between the two that the latter will give way to the former .) For present purposes, these words, when read with Article 218(3), indicate that the nature of the office of a member of the Commission (or the CEC for that matter) must be determined by looking at the constitutional position. While legislation may expand upon that by, e.g., conferring additional powers and/or functions on the Commission, that is not of the essence of
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the office. To hold otherwise may well make the office captive and beholden to whatever is set out in the law for the time being in force. For, what the legislatu re gives it can also take away . Thus, to regard the nature of the office as determinable by, or subject to, the legislative whim (again, howsoever laudably exercised) would make it rather like what was once said of equity and the Chancellor 's foot. That, in our view and with respect to the learned High Court, cannot be the correct. The nature of the office is to be determined autonomously , by a consideration of the constitutional position. The position under any laws for the time being in force can play only (and at best) a subordinate or ancillary role. 10. With these preliminary points in mind we take a first look at Article 207(2). As submitted by the learned petitioner , if the question posed above was rightly answered in the affirmative, then the separate listing of the office of the CEC would become otiose and redundant. The reason is that anything that is true of, or for, the office of a member of the Commission must (unless there is some provision to the contrary) be necessarily true of, and for, the office of the CEC (although the reverse may not apply). If the constitutional intent had been to regard the former as a quasi-judicial office, then the same would be true for the latter . The specific mention of the office of CEC would not have been required. Why then list this office separately? With respect, the learned High Court failed to appreciate this basic question. Redundancy cannot lightly be read into a statute, let alone the Constitution. A reading of Article 207(2) that leads even to the possibility of such a conclusion is, in our view, constitutionally suspect and ought to be avoided. 11. So much for what emerges from even a bare reading of Article 207(2). We now proceed to consider the reasoning and conclusions of the learned High Court on the basis of the various provisions of the 2017 Act referred to, which were also relied upon before us by learned counsel for the respond ents. Of these by far the most important is s. 9 which, as noted above, corresponds to the earlier s. 103AA of the 1976 Act. The first point to note is that the jurisdiction conferred on the Commission by these provisions is actually of a complex, hybrid nature and an attempt to "slot" it into the well known categories of "judicial", "quasi-judicial" and "administrative" may not be appropriate (and may actually be misleading). However , any such discussion will take us too far from what is necessary for present purposes, and we proceed with this matter on the basis that the jurisdiction conferred was, and is, of a quasi-judicial nature. Now, as the numbering of the earlier section suggests, it was not part of the 1976 Act when originally enacted. It was in fact added much later, in 1991. This in itself demonstrates that it could not be of the essence of the office of a member . Had that been the case, the failure to confer such a jurisdiction on the Commission from inception would have resulted in a material inability that could well have fatally hampered it in discharging its constitutional duties in terms of Article 218(3). That however was patently not so. Thus, the conferment of the jurisdiction on the Commission cannot be part, or even indicative, of the true nature of the office of a member . It was, and is, simply an additional power , latterly conferred and ancillary to the essence of the office. Thirdly , the jurisdiction has been conferre d by statute and, as noted above, what the legislature gives it can take away . The jurisdiction could easily have been omitted when the 1976 Act was replaced by the 2017 Act. Section 9 can at any time be omitted or reshaped or even whittled down to insignificance. If therefore the jurisdiction so conferred were part, or even indicative, of the true nature of the office of a member , that nature would be subject to the will and whims of the legislature. That surely cannot be true for the constitutional office. Here, it must also be pointed out that both the learned petitioner and learned counsel for the respondents have proceeded on the basis that the jurisdiction was conferred in terms of clause (e) of Article 219, already referred to above. With respect, this cannot be correct. Clauses (d) and (e) were added to Article 219 only by the 18th Amendment (2010). On this view, the earlier insertion of the predecessor s. 103AA in 1991 would be ultra vires . The insertion is more properly referable to Article 222, clause (d) of which empowers Parliament to make laws for the "conduct of elections" and "decision of doubts and disputes arising in connection with elections" (read of course, with Entry No. 41 of the Federal Legislative List). In other words, the jurisdiction was conferred in terms of the general lawmaking competences of Parliament and not in terms of a power relatable expressly to the duties of the Commission, as provided for in Article 219. 12. Fourthly, and most importantly, as pointed out by the learned petitioner, both s. 103AA and s. 9 specifically had, and have, a legal fiction in identical terms, to the following effect: "While exercising the powers conferred on
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it by sub-section (1), the Commission shall be deemed to be an Election Tribunal to which an election petition has been presented...." Now, an Election Tribunal is constituted to (exclusively) determine election disputes, and this is itself a constitutional requirement: see Article 225. This Tribunal is a forum that undoubtedly exercises judicial power. Section 9 deems the Commission to be such a Tribunal for its purposes and, as noted above, we proceed here on the basis that the jurisdiction conferred is quasi-judicial. As is apparent there is a tension and even, seemingly, a contradiction involved in what has just been said. (This is one of the many reasons why, as noted above, the jurisdiction conferred by s. 9 is actually quite complex in nature, not easily resolvable by resort to the "normal" division into the three well known categories, which ordinarily work well enough.) We need not resolve the tension here, nor iron out the apparent contradiction. It suffices to note that clearly the legislature itself was, and remained, acutely aware that the jurisdiction could not be directly conferred on the Commission per se, i.e., acting as such. It could only be given under cover of a legal fiction requiring, for purposes of the jurisdiction, for the Commission to be regarded as that which it patently is not, i.e., an Election Tribunal. But if this is so (and the very constitutionality of a provision such as s. 9 can be regarded as being open to question) then one point is clear: it is not of the essence of the office of a member and does not, and cannot, touch upon the core or inherent nature of that office. We therefore conclude that the support found by the learned High Court in s. 9 (and the predecessor s. 103AA) for its conclusions was, with respect, an error that cannot be sustained. 13. The other provisions of the 2017 Act considered may now be taken up (though not in sequential order). Reference was made to s. 126, which provides that for purposes of disposal of an appeal the Commission has the same powers as vest in a court under the Code of Civil Procedure ("CPC") for certain matters as listed therein. Now, s. 126 and the conferment of the sort of powers there listed is a common legislative device that has been adopted in many statutes in respect of diverse offices, bodies, authorities and forums. To take but one example, s. 176…
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