IHC rejects AML chief’s plea seeking revival of election laws

ISLAMABAD: Justice Athar Minallah of the Islamabad High Court (IHC) here on Friday dismissed a petition of the Awami Muslim League (AML) Chairman, Sheikh Rashid Ahmad and Ammar Ziauddin, who had been seeking revival of certain election laws and provisions under which an aspiring election candidate must provide detailed information about his financial resources, expenses on election campaign, dual nationality, family details, details about any pending criminal cases and loans from the financial institutions.

The IHC judge remarked that the Election Commission of Pakistan (ECP) is an independent body, and it can inquire any candidate about his assets and can also hold an inquiry. During the last hearing, the bench had remarked that parliament is supreme and empowered to legislate. A court cannot issue such an order directing parliament to consult the Election Commission of Pakistan before passing legislation.

According to the petitioners, it is fundamental right of a voter to know details about the candidates to make a well informed decision, but, ironically, all such declarations that previously a candidate was supposed to submit before the ECP has now been removed from the election forms.

The petitioners had nominated the Federation of Pakistan through secretary law and justice division, secretary parliamentary affairs division and election commission of Pakistan through chief election commissioner as respondents. They contended that they are seeking protection of voters, democratic system and fundamental rights of the Pakistani citizens. The Election Act 2017 (EA-17) was promulgated on October 2, 2017, after the assent of the president. That the nomination forms created under this act have omitted and /or modified numerous declarations and entries that had been present in the previous nomination forms.

These declarations included outstanding loans from banks, declaration regarding default of payment of government dues or utility charges, provision of list naming spouse(s) and dependents, declaration of pending criminal cases, declaration of educational qualification, declaration of present occupation, declaration of national tax number, declaration of income tax paid during the last three years (along with total income and sources of income), declaration of foreign trips during the last three years, declaration of agricultural income tax paid along with land holding and agriculture income, declaration of important contribution made by the candidate for benefit of his constituency if elected previously, declaration of sum paid to the political party that awarded the candidate with ticket, declaration to abide by the code of conduct issued by the ECP, declaration of net assets this year and previous year and difference between the two years, declaration of foreign passport details and declaration on oath that the candidate is a Pakistani citizen and does not hold nationality of any other country. The petitioners said that the candidate no longer stated / declared the same on oath or solemn affirmation.

The petitioners said that through these petitions, they are seeking indulgence of this court to come to the rescue of Pakistani voters and their fundamental rights guaranteed under articles 19 and 19-A. Article 19 is about the freedom of expression and 19-A is regarding access to information that is fundamental right of a voter for selection of the candidates.

It is imperative that the financial standing of a candidate be disclosed to the voter as well to the ECP. A voter must know that how much expense a candidate has made on his election campaign, where he got all this money from and whether it was lawfully earned money. Excluding the clause related to dual nationality and foreign trips, now a candidate can conceal his ties with foreign countries. By removing the requirement for the candidate to give declaration on oath relating to pending financial obligations, involvement in criminal cases, payable government dues, utility charges, income tax returns (including submission of returns of preceding three years), and educational qualification, the voter has been robbed of the ability to make a free and informed decision choice with regard to election candidate.

In the 2017 forms for the candidates, entries have also been removed regarding lists of spouse(s) and children that have restricted voter's access to this information. In the constitution of Pakistan, it is mandatory for the political parties and its members to reveal about the financial resources. Interestingly, the 2017 forms removed entries relating to financial conditions, taxes, loans and government dues etc.

The petitioners had prayed to the court to declare that the access of detailed information about a candidate is a fundamental right of a voter that cannot be curtailed, abridged or limited by a legislative fiat. They had also prayed that ECP may be directed to use its powers under Article 218(3) of the Constitution to call for the necessary information about the particulars, antecedents, details of the contesting candidates through duly sworn affidavit and declare the same to be integral part of the information form.

They also prayed that the declaration of above said information for a contesting candidate may be declared necessary and also to declare that the provisions of sections 60(2), 110(2) and 137 of the Election Act 2017 along with forms made under this act are against Article 19 and 19-A of the Constitution. Alternatively, these provisions may be read in conformity with articles 62 and 63 of the Constitution.