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Petitioner: QAZI HUSSAIN SIRAJ VS Respondent: Prof. SAJID MIR and 5 others
Court Name: Lahore High Court Judge(s): Ayesha A. Malik Title: QAZI HUSSAIN SIRAJ vs Prof. SAJID MIR and 5 others Case No.: W.P. No, 5783 of 2015 Date of Judgment:2015-03-04 Reported As: PLJ 2015 Lahore 1108 Result: Petition dismissed
JUDGMENT
JUDGMENT ' Respondent No, 1 Professor Sajid Mir is a candidate for the senate elections on the seats reserved for technocrats and ulema. The Petitioner, a citizen of Pakistan, challenges the acceptance of the nomination papers of Respondent No, 1 on the ground that he is not qualified and that he made false declarations in his nomination papers In this regard, the Petitioner has impugned order dated 20.2.2015 issued by the Returning Officer ("RO") and order dated 27.2.2015 issued by Respondent No, 3, Election Commission of Pakistan ("ECP"), ' The Petitioner also prays for rejection of the nomination papers of Respondent. No, 1 and for initiating proceedings against him under, Sections 58(aa) and 62 of the Senate (Election) Act, 1975 ("Senate Act") for committing corrupt practice by submitting a false and incorrect declaration in his nomination papers. 2. The case of the Petitioner is that Respondent No, 1 is not qualified to be elected as member Senate against the seat reserved for technocrats and ulema. Learned counsel stated that the Petitioner raised four substantive objections against the nomination of Respondent No, 1, however, the RO did not consider any of the objections and instead dismissed his application on the ground that the Petitioner is not competent to file objections against the nomination of Respondent No, 1 under Section 13(1) and (2) of the Senate Act. In terms of the order of the RO, the Petitioner was not a proposer, seconder, agent or candidate for the senate elections, hence he has no locus standi to raise objections against the nomination papers of Respondent No, 1. The Petitioner then moved a petition under Section 13(6) read with Sections 58(aa) and 62 of the Senate Act and Article 218(3) of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") against the order dated 20.2.2015 before the ECP. The ECP upheld the order of Respondent No, 2 and at the same time
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decided the matter on its merits, finding Respondent No, 1 had the qualification, experience and achievements required for contesting against the seat of technocrats and ulema. 3. Mr. Mubeen-ud-Din Qazi, learned counsel for the Petitioner argued that the question whether or not Respondent No, 1 is qualified to become member Senate against the seat reserved for technocrats or ulema must be looked into by this Court. Learned counsel submitted that Respondent No, 1 is not qualified to be elected as member Senate because he has sworn a false declaration. Respondent No, 1 deliberately falsified information in his nomination papers and therefore should be disqualified. Learned counsel argued that Respondent No, .,1 stated that he belongs to Pakistan Muslim League (N) whereas he belongs to an independent political party namely Markazi Jamiat Al-Hadith of which he is the President and for which election symbol of `Spectacle'- was awarded vide notification dated 26.3.2013. Learned counsel further argued that Respondent No, 1 stated that he is a Professor, however as per the eligibility criteria for appointment of faculty in various disciplines, issued by the Higher Education Commission ("HEC"), he does not qualify for the post of Professor and was never promoted as Professor. He stated that this tantamounts to a false declaration by Respondent No, 1. Learned counsel argued that Respondent No, 1 claims to have two masters' degrees, one in English and the other in Islamic Studies whereas under the eligibility conditions for appointment of faculty issued by the HEC, the minimum qualification for Professor is a Ph.D. Learned counsel argued that he also does not meet the criteria for technocrats or ulema because he does not possess the qualifications given in the Explanation to Article 5(1)(c) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 which provides for technocrats and aalim. Therefore he is neither a technocrat nor an aalim, and cannot be elected from the said seat. 4. On the other hand, learned counsel for Respondent No, 1 at the very outset questioned the locus standi of the Petitioner. He argued that the Petitioner is a citizen of Pakistan who does not have any right to scrutinize the nomination of candidates under the Senate Act. He argued that the process of scrutiny of nomination papers is under Section 13 of the Senate Act, which provides for the persons who can file objections against nomination papers. Under Section 13(1) of the Senate Act only the candidate, proposer, seconder and authorized agent can file objections. A citizen is not entitled to interfere at the stage of scrutiny and so any objections filed by the Petitioner cannot be entertained by the RO. In this, regard, he relies upon the impugned order of the RO wherein the objections were dismissed under Section 13(1) and (2) of the Senate Act on the ground that he does not have locus standi. Learned counsel further argued that the Petitioner is not an aggrieved person because Respondent No, 1 has not been elected. Acceptance of the nomination papers simply enables Respondent No, 1 to participate in the election. Any grievance of the Petitioner would actualize if Respondent No, 1 was elected against the seat of technocrats and ulema and was notified as member Senate. Even in such eventuality, the Petitioner is not remediless but can question the appointment of Respondent No, 1 in the form of filing a constitutional petition for issuance of a writ of quo warranto. Learned counsel further argued that the election process cannot be challenged save in accordance with Section 31 of the Senate Act which provides that the election can only be questioned through an election petition filed after the publication of the result of the election. Therefore the mandate of the Senate Act is that the election process should not be interrupted and any challenge to the election should be after the publication of the result. He further relied upon Rule 39 of the Senate Election Rules, 1975 ("Senate Rules") which provides that an election petition can be filed by a candidate in person or by a representative, authorized by the candidate and no one else. Therefore, the Petitioner does not have any right to call into question the nomination of candidates under the Senate Act. 5. Mr. Muhammad Ahsan Bhoon, Advocate for the Petitioner argued that the Petitioner has a right to question the impugned orders dated 20.2.2015 and 27.2.2015 on the ground that neither the RO
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nor the ECP considered the nomination of Respondent No, 1 in accordance with the conditions laid down in Section 13(3) of the Senate Act. He argued that the Court can, on a petition by a citizen, look into the legality of the order of the RO or the ECP if they have failed to exercise their duty under the Constitution and the Senate Act. He explained"that Respondent No, 1 made several false declarations in his nomination form and that the RO was obligated to look into the false declaration, conduct an inquiry and reject his nomination papers. He further argued that no legal remedy is available to the Petitioner under the Senate Act, hence he can come to this Court in a constitutional petition. He argued that the Petitioner has a right to ensure that qualified people are elected and become member Senate, which right has to be protected by this Court. Therefore this Court can under Article 199 of the Constitution look at the impugned orders and can look into the objections raised by the Petitioner with respect to the eligibility of Respondent No, 1 as a technocrat or aalim for the purposes of the senate elections. 6. Mirza Nasar Ahmad, learned DAG argued that the election is an ongoing process and in terms of the dicta laid down by the Hon'ble Supreme Court of Pakistan in the case titled Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), this Court cannot interfere in the election process due to the bar contained under Article 225 of the Constitution. The use of the word 'election' under Article 225 of the Constitution means the entire election process including the nomination process until the Notification of the result, He stated that this view has been upheld in several judgments including Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2016 SCMR 233). 7. Learned counsel for Respondent No 6 adopts the arguments made by the learned counsel for the Petitioner. 8. Heard. Record perused. 9. Section 13 of the Senate Act is reproduced hereunder: Scrutiny.-- (1) The candidates, their proposers and seconders and an agent authorized in writing in this behalf by each candidate, may attend the scrutiny of the nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under Section 11, (2) The Retuning Officer shall, in the presence of the persons attending the scrutiny under sub- section (1), examine the nomination papers and decide any objection raised by any such person to any nomination. (3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary inquiry as he may, think fit and reject any nomination paper if he satisfied that: (a) the candidate is not qualified to be elected as a member; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper (c) any provision of Section 11 or Section 12 has not been complied with I or submits any false or incorrect declaration or statement in any material particular I; or (d) the signature of the proposer or seconder is not genuine; Provided that: (i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; (ii) The Returning Officer shall not reject a nomination paper on the ground; of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith; and (iii) The Returning Officer shall not inquire into the correctness or validity of any entry in the electoral roll. (3a) The Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record.
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(3b) Notwithstanding anything contained in sub-section (3), where a candidate deposits any amount of loan; tax or utility charges payable by him before rejection of his nomination paper on the ground of default in payment of such loan, taxes or utility charges, such nomination paper shall not be rejected for default thereof.] (4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and shall, in the case of rejection, record a brief statement of the reasons therefore. [(5) Where the nomination of a candidate has been rejected under this section by a Returning Officer, an appeal shall lie, within two days of the scrutiny day, to the Commissioner For a Member of the Commission Authorised by the Commissioner I and any order passed by the Commissioner such member, as the case may be, on such appeal shall be final: [Provided that where a nomination paper is rejected by the Returning Officer on the ground that the candidate is a defaulter of loan or taxes or Government dues or utility charges or has had the loan written off and the candidate pays such loan or, as the case may be, taxes, Government dues. Or utility charges or the written off loan on or before the last date fixed for disposal of appeals and satisfies the Member of the Election Commission that such payment has been made, his nomination shall be treated as having been accepted on that ground!. [(6) If the member of the Commission, referred to in subsection (5), is, on the basis of information or material coming to his knowledge from any source, satisfied that a candidate whose nomination paper has been accepted is-- (a) a defaulter of loans, taxes, Government dues or utility charges or has had any loan written off or is subject to any other disqualification from being elected as a member of Senate., he may, on his own motion, call upon such candidate to show cause why his nomination should not be rejected, and if he is satisfied that the candidate is defaulter as aforesaid or has had a loan written off or is subject to any disqualification, he may reject his nomination paper. 10. The basic issue before the Court is with respect to the locus standi of the Petitioner and the maintainability of the Petition. On the question of locus standi, the Petitioner is a citizen of Pakistan who claims that he has a right to question the nomination of candidates contesting the senate elections. Election of the senate is held under Article 59 of the Constitution and the Senate Act provides the manner in which the election is to be carried out. Section 13 of the Senate. Act provides for scrutiny of the nomination papers. A candidate, his proposer, seconder and an- agent authorized in writing may attend the scrutiny of the nomination papers and the Returning Officer shall give reasonable opportunity for examining all nomination papers delivered to him under Section 11. Section 13(3) provides that the Returning Officer may, either on his own motion or upon any objection, conduct such summary inquiry as he may think fit and reject any nomination paper if he is satisfied. Learned counsel for the Petitioner relied upon Section 13(3) to urge the point that the use of the words "upon any objection" includes an objection other than those mentioned in Section 13(1). The Petitioner's case is that Section 13(3) gives him locus standi, as he can raise objections against a nomination, under this section which enables the RO to inquire into the nomination papers of the candidate and ensure that the candidate is qualified and has not made false declaration. 11. The scheme of law for the purposes of senate elections is clearly set out in the Senate Act. A voter from a province may propose or second the name of a person qualified for election to the senate from the province. The nomination papers are signed by the proposer and seconder along with the candidate, who has given a solemn affirmation in terms of Section 11(2) of the Senate Act. At the time of scrutiny, the candidate, proposer and authorized agent are present and can examine the nomination papers. The RO in the presence of all examines the nomination papers and decides upon the objections, if any, raised. Section 13(1) and (2) of the Senate Act when read together stipulate that persons examining the nomination papers can raise objections, which shall be
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decided by the RO, in the presence of such persons. Section 13(3) of the Senate Act empowers the RO to conduct an inquiry with respect to information contained in the nomination papers. As per the Section 13(3) the RO can hold a summary inquiry or call for documents or the record if he is satisfied that the candidate is not qualified to be elected as a member; the proposer or the seconder are not qualified to subscribe to the nomination paper; any provision of Section 11 or Section 12 has not been complied with or if the candidate submits a false or incorrect declaration with respect to a material particular in the nomination papers or the signature of the proposer or seconder are not genuine. The use of the words "of his own motion" in Section 13(3) simply means that the RO can decide on his own motion, whether an inquiry is required, irrespective of any objection that has been made. The Section authorizes the RO to determine whether he wants to inquire into the nomination papers on the basis of the conditions laid down in Section 13(3). In this case, he is not dependent on any objection(s) being raised against the nomination papers. The use of the word "objection" in Section 13(3) must be read in conjunction with Section 13( 1) and (2). Section 13(3) refers to the objections made under sub-section (2). It is with reference to the objections filed under Section 13(2) that the RO can decide if he wants to conduct a summary inquiry. The RO can take this decision either-on his own motion or on the basis of the-objections that have been made under Section 13(2). Objections under Section 13(3) do not refer to objections by anyone other than the proposer, seconder agent or candidate. Therefore Section 13(3) of the Senate Act does not create a right for a citizen to file objections before the RO. 12. At this point, it is necessary to examine the role of a citizen in the senate elections. Section 11 entitles a voter to propose or second the name of any person qualified for election to the senate from the Province. Voter is defined under Section 2(q) of the Senate Act to be a person who is a member of the Provincial Assembly of that Province. So the member Provincial Assembly votes in the senate elections. Mr. Mubeen-ud-Din Qazi, learned counsel for the Petitioner' argued that since the citizen elects the Member Provincial Assembly, therefore the citizen has an interest in the name proposed for the senate elections and he has to protect his interest by objecting to the proposed name, if the candidate is not qualified. However, this argument is misconceived as the Senate Act does not envision a role for the citizen as he does not. Participate directly in the senate election. The fact that the Member Provincial Assembly is the voter does not give the Petitioner a right to object to nominations, because he has no direct nexus with the nomination or the election process. The Petitioner states that if he has no right under the Senate Act then a petition under Article 199 of the Constitution is the only remedy available to him. 13. To determine the maintainability of this petition Article 225 is relevant. The said Article reads as follows:-- No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of (Majlis-e- Shoora (Parliament). ' In the case titled Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396) the Hon'ble Supreme Court of Pakistan has held that the election is a continuous process consisting of several steps taken for its completion. Mirza Nasar Ahmad, learned DAG argued that "election" under Article 225 means the entire process, commencing from the announcement of the election till the date of notification of successful candidates. Ho argued that Article 225 prohibits challenge to the election except by way of an election petition meaning that it mandates the completion of the election process before any challenge is made In the Javaid Hashmi ease it was held that the election process should be challenged at an appropriate stage, in appropriate proceedings before the election tribunal and it should not be challenged at an intermediate stage before any Court. The Hon'ble Supreme Court of Pakistan found that Article 225 creates a right to challenge the election by an election petition before an election tribunal as
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determined by an Act of Parliament. In the Raza Hiraj case, the Hon'ble Supreme Court of Pakistan held that the interlocutory orders passed by the Election Tribunal impugned before the High Court, were not liable to be set aside in its Constitutional jurisdiction as the petitioners before the Court had remedy available to them by way of an appeal under Section 67 of the Act after disposal of the election petitions. In the instant case, the Petitioner has argued that if he does not have any right under the Senate Act to question the election process or the nomination papers then the instant petition is maintainable because as per the ratio of the Javaid Hashmi case, an election dispute can only be resolved by an election petition before the election tribunal. Since the Petitioner cannot file an election petition before the election tribunal under Section 13 of the Senate Act, the Petitioner will be left without any remedy to question the qualification of Respondent No, 1 and Respondent No, 1 will contest the election even though he is not eligible. Hence remedy to invoke constitutional jurisdiction of this Court is available to the Petitioner. 14. Based on the arguments made the question that needs to be considered is whether a citizen can challenge the qualification of a candidate nominated for the senate election through a constitutional petition. Article 225 of the Constitution provides that no election can be called into question except by an election petition before an election tribunal as laid down by an act of Parliament. The right of the citizen has to be seen in the light of Article 225 of the Constitution. Section 31 of the Senate Act provides that senate elections can only be called into question by an election petition under Section 34, Section 34 provides that an election petition shall be presented to the Commissioner within forty-five days of the publication of the result of the election in the official Gazette. Rule 39 of the Senate Rules provides that an election petition may be presented by any candidate in person or by his authorized representative. Therefore for the purposes of the Senate Act, after the election process is completed, only a candidate can challenge the election result. A citizen cannot file an election petition under Section 34 of the Senate Act read with Rule 39 of the Senate Rules. Learned counsel for the Petitioner has relied upon the cases titled Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others (PLD 2008 SC 313), Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and 10 others (PLD 2008 SC 429), Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others (PLD 2008 SC 487) and L,et.Gen (R) Salahudding Tirmizi v. Election Commission of Pakistan (PLD 2008 SC 735) to urge the point that the bar under Article 225 would not be attracted when a challenge was made under Article 199 of the Constitution to the competency and qualification of a person nominated as a candidate for the senate election. Learned counsel stated that in these cases the High Court in its constitutional jurisdiction could entertain the question of acceptance or rejection of nomination papers in which the disqualification of a person to contest the election was apparent on the record and could be decided without a factual inquiry. He stated that the Hon'ble Supreme Court of Pakistan in the cases cited held that if a person was not qualified to contest the election, the High Court could interfere against the order of acceptance of his nomination papers. This would not be in conflict with Article 225 because the powers under Article 199 of the Constitution are on a higher pedestal than the power emanating from Article 225 of the Constitution. 15. Having gone through the judgments cited by the learned counsel for the Petitioner, it is necessary to ascertain the scope of Article 225 of the Constitution when a challenge is made to the qualification or disqualification of a potential candidate for the senate election under Article 199 of the Constitution. In terms of the dicta laid down in the javaid Hashmi case, the Hon'ble Supreme Court of Pakistan found that there cannot be two attacks on the election process, one through a petition under Article 199 of the Constitution while the election is still underway and the other before the tribunal when it is completed. The reason given was to avoid conflicting decision and delay in the election process. The use of the word "no election shall be called into question" was held to mean that Article 225 gave exclusive jurisdiction to the election tribunal with reference to election
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disputes to the exclusion of all Courts including the High Court. The reason being that Article 225 was expressed in the negative form thereby prohibiting any kind of intervention in the election process. The Hon'ble Supreme Court of Pakistan explained that elections should be held as per schedule, without undue "delay or prolonged challenge at the intermediate stage. Since the question in the instant petition is with respect to the nomination of Respondent No, 1 for the purposes of contesting the senate election on the seat reserved for technocrats and ulema, the election process is still under way and it is an intermediate stage as the election result has not been announced. 16. The judgments relied upon by the learned counsel for the Petitioner are distinguishable firstly on the ground that they have all been rendered by three Hon'ble Judges of the Hon'ble Supreme Court of Pakistan whereas the Javaid Hashmi case was delivered by four Hon'ble Judges of the Hon'ble Supreme Court of…
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