Elections Act: IHC rules out changing nomination papers
Court’s May 25 judgment insists ECP is empowered to improve the forms, but not without consulting political parties
The Islamabad High Court. PHOTO: EXPRESS
ISLAMABAD:
The Islamabad High Court (IHC) on Saturday refused to strike down Form A and Form B – which form an integral part of the Elections Act, 2017 – differing with the Lahore High Court (LHC) judgment that ordered the Election Commission of Pakistan (ECP) to redraft the nomination forms.
In its May 25 judgment, the IHC insisted that the ECP was empowered to add or improve the forms, but it directed the commission to do so in consultation with mainstream political parties.
Confusion surrounding the next elections deepened as IHC’s Justice Athar Minallah disposed of two petitions, challenging vires of Form A and Form B that are integral part of the Elections Act, 2017.
ECP not to issue nomination papers after LHC ruling
“It is by now settled law that the Election Commission is empowered to add or improve to a form prescribed under a statute or rules made thereunder, therefore, a case for striking down Form A and Form B of the Act of 2017 is not made out,” Justice Minallah stated in the order.
Justice Minallah’s short order also stated, “It is also settled law that utmost endeavour is to be made to save a statute enacted by the Majils-e-Shoora (Parliament).”
The order was passed on petitions filed by the Awami Muslim League’s (AML) Sheikh Rasheed Ahmed and Umar Ziauddin.
Interestingly, Advocate Saad Rasool is the counsel for one or the other petitioners before the LHC and the IHC.
Both judgments caused confusion as both courts arrived at different conclusions on similar petitions.
Filing before the IHC, the petitioners contended that Form A and Form B – and information sought therein – did not meet the threshold of the constitutional mandate, inter-alia, contemplated under Articles 62 and 63 of the Constitution.
In their petition before the LHC, they contended that the new nomination forms formulated by parliament were against Articles 62 and 63 of the Constitution, and parliament was not competent enough to draft the forms as it was the job of the ECP.
In the order, Justice Minallah maintained: “The Election Commission of Pakistan is expected to consult the national political parties in order to make its decisions transparent and meaningful.”
Citing a Supreme Court judgment, Justice Minallah stated the apex court had unequivocally observed that the ECP had a constitutional commitment and obligation to arrange and organise elections in accordance with Article 218(3), besides being empowered under Article 222 of the Constitution.
He also held that pursuant to the commitment of the Constitution, the ECP was also empowered to improve a form, requiring information on antecedents of the candidates. The ECP, he added, could do this without changing the character or contents of the rules made under a statute.
“The Supreme Court has explicitly held that there is no hard and fast rule for the purposes of making improvements in a pro forma of nomination paper, particularly when the required object is to enforce Article 218(3) of the Constitution,” Justice Minallah stated.
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According to him, the Supreme Court had emphasised upon the need for seeking relevant information about a candidate, adding that it was essential because he or she could represent the entire constituency on behalf of the constituents.
Justice Minallah also stated that the Supreme Court had observed that the ECP, pursuant to its constitutional powers vested under Article 218(3) of the Constitution, was empowered to include information or improve the nomination papers required to be submitted by candidates for general election in accordance with the constitutional mandate.
“The ECP, pursuant to its constitutional commitment, is empowered to add any information to or improve Form A and Form B, which are an integral part of the Act of 2017,” Justice Minallah ruled.
He said the petitioners “shall be at liberty to submit their proposals to the ECP in this regard which in their opinion is essential to be added to Form A and Form B of the Act of 2017”.
The Islamabad High Court (IHC) on Saturday refused to strike down Form A and Form B – which form an integral part of the Elections Act, 2017 – differing with the Lahore High Court (LHC) judgment that ordered the Election Commission of Pakistan (ECP) to redraft the nomination forms.
In its May 25 judgment, the IHC insisted that the ECP was empowered to add or improve the forms, but it directed the commission to do so in consultation with mainstream political parties.
Confusion surrounding the next elections deepened as IHC’s Justice Athar Minallah disposed of two petitions, challenging vires of Form A and Form B that are integral part of the Elections Act, 2017.
ECP not to issue nomination papers after LHC ruling
“It is by now settled law that the Election Commission is empowered to add or improve to a form prescribed under a statute or rules made thereunder, therefore, a case for striking down Form A and Form B of the Act of 2017 is not made out,” Justice Minallah stated in the order.
Justice Minallah’s short order also stated, “It is also settled law that utmost endeavour is to be made to save a statute enacted by the Majils-e-Shoora (Parliament).”
The order was passed on petitions filed by the Awami Muslim League’s (AML) Sheikh Rasheed Ahmed and Umar Ziauddin.
Interestingly, Advocate Saad Rasool is the counsel for one or the other petitioners before the LHC and the IHC.
Both judgments caused confusion as both courts arrived at different conclusions on similar petitions.
Filing before the IHC, the petitioners contended that Form A and Form B – and information sought therein – did not meet the threshold of the constitutional mandate, inter-alia, contemplated under Articles 62 and 63 of the Constitution.
In their petition before the LHC, they contended that the new nomination forms formulated by parliament were against Articles 62 and 63 of the Constitution, and parliament was not competent enough to draft the forms as it was the job of the ECP.
In the order, Justice Minallah maintained: “The Election Commission of Pakistan is expected to consult the national political parties in order to make its decisions transparent and meaningful.”
Citing a Supreme Court judgment, Justice Minallah stated the apex court had unequivocally observed that the ECP had a constitutional commitment and obligation to arrange and organise elections in accordance with Article 218(3), besides being empowered under Article 222 of the Constitution.
He also held that pursuant to the commitment of the Constitution, the ECP was also empowered to improve a form, requiring information on antecedents of the candidates. The ECP, he added, could do this without changing the character or contents of the rules made under a statute.
“The Supreme Court has explicitly held that there is no hard and fast rule for the purposes of making improvements in a pro forma of nomination paper, particularly when the required object is to enforce Article 218(3) of the Constitution,” Justice Minallah stated.
Caretaker PM directs legal team to challenge LHC verdict on nomination papers
According to him, the Supreme Court had emphasised upon the need for seeking relevant information about a candidate, adding that it was essential because he or she could represent the entire constituency on behalf of the constituents.
Justice Minallah also stated that the Supreme Court had observed that the ECP, pursuant to its constitutional powers vested under Article 218(3) of the Constitution, was empowered to include information or improve the nomination papers required to be submitted by candidates for general election in accordance with the constitutional mandate.
“The ECP, pursuant to its constitutional commitment, is empowered to add any information to or improve Form A and Form B, which are an integral part of the Act of 2017,” Justice Minallah ruled.
He said the petitioners “shall be at liberty to submit their proposals to the ECP in this regard which in their opinion is essential to be added to Form A and Form B of the Act of 2017”.