In Tahir Sadiq, the petitioner’s nomination papers for NA-49 (Attock-I) were rejected by the Returning Officer on the ground that he was a “proclaimed offender” in a criminal case. The Appellate Tribunal accepted his papers, but the Lahore High Court reversed and rejected them again. The petitioner approached the Supreme Court
Held: The Supreme Court set aside the High Court’s decision and accepted the petitioner’s nomination papers. It held that the right to vote and contest elections is fundamental under Articles 17(2) and 19 of the Constitution, forming the core of representative democracy. The Court clarified that a person cannot be treated as a proclaimed offender without proper proceedings and proclamation under Section 87 Cr.P.C.. It emphasized that electoral laws must be interpreted in favor of enfranchisement rather than disenfranchisement, ensuring maximum voter choice. The Court reiterated that qualifications and disqualifications must be clearly spelled out in law, not inferred. The Court reaffirmed that the right to vote and contest elections under Article 17(2) is central to political justice and democratic legitimacy, declaring any restriction on these rights as a threat to representative governance
Selected Passages:
“Elections stand as a manifestation of the collective will of a nation, reflecting the diverse voices and choices of its citizens. In this democratic process, individuals exercise their right to vote, contributing to the formation of a representative government. The rights involved are not only of those participating in the elections but also of the public. The courts, in their role as guardians of democracy and fundamental rights, should approach electoral matters with circumspection, ensuring
that their interventions uphold the democratic principles upon which the nation thrives and the fundamental rights of citizens to contest elections and vote for the candidates of their choice.
The right to vote freely for the candidate of one’s choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government… Electoral laws must be interpreted in favour of enfranchisement rather than disenfranchisement so that maximum choice remains with the voters to elect their future leadership
‘No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.’
2024 SCMR 775
In Sunni Ittehad Council, the question before the court was that whether a registered political party — the Sunni Ittehad Council (SIC) — could claim entitlement to reserved seats (for women and non-Muslims) in the National Assembly and Provincial Assemblies despite not having contested general seats in the election, but after independent candidates joined the party postelection. The controversy had arisen out of the general elections 2024 and the denial of proportionate representation-based seats to a major political party of Pakistan on account of the Election Commission of Pakistan holding is members as independents
Held: The Supreme Court set aside the orders of the High Court and that of the Election Commission of Pakistan for refusing to give the SIC the reserved seats. The Court looked at a holistic view of the electoral provisions of the Constitution and outlined the crucial importance of the right to vote linked to democratic governance. The Court lay stress to “doing complete justice” and to ensure that the proper democratic rights of the citizenry are reflected through the electoral and follow up processes in the National Assembly. Laying down an expansive jurisprudence of democratic governance, of the role of an electoral oversight body in a constitutional democracy and the right of proper representation in the National Assembly, the court held that the Pakistan Tehreek-e-Insaaf was a political party and was entitled – rather than the SIC – for its share of proportional reserved seats.
Selected Passages:
“At the core of our democratic Constitution lies the will of the people of Pakistan, with free and fair elections being fundamental to democracy. The principle that ‘the most important political office is that of the private citizens’ underscores the crucial role of the people, whose right to vote is the lifeblood of democratic governance. Democracy thrives on the belief that authority inherently resides in the people, a principle enshrined in the Constitution of every democratic nation, including ours. Our Constitution is not merely a governmental blueprint but a covenant affirming the supreme role of the people in shaping their destiny.
Election authorities, as “electoral management bodies”, are the “guarantor institutions” of democratic processes and are critical to democratic governance, akin to a “fourth branch of government”. Their constitutional role is to ensure the conduct of elections by providing an equal and fair competitive field for all political entities and protect citizens’ rights to vote. As an impartial steward of the electoral process, the Election Commission of Pakistan is not only an administrative body but also a guardian of electoral integrity and democracy’s legitimacy. When election authorities engage in actions that undermine these principles, such as unlawfully denying the recognition of a major political party and treating its nominated candidates as independents, they not only compromise the rights of these candidates but also significantly infringe upon the rights of the electorate and corrode their own institutional legitimacy
The role of the Supreme Court of Pakistan in overseeing electoral integrity is crucial for sustaining public trust in the democratic process, and the Court’s power to do “complete justice” is a critical tool in the constitutional arsenal of this Court, enabling it to prevent democratic backsliding, and protect democracy effectively with a focus on the electorate’s rights. Denying electoral justice and compromising electoral integrity would undermine the very legitimacy of democracy.
Constitutional fidelity as a concept embodies that to be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution’s meaning and democratic legitimacy over time. Constitutional fidelity and legitimacy both are framed in a means-end relationship; legitimacy as the end and constitutional fidelity as a means to that end”
In Arshad, the residents of union councils and wards had challenged the delimitation of constituencies before the Lahore High Court alleging that the drawing up of constituencies was an exercise in gerrymandering.
Held: Held: The court went back to the fundamentals and looked at how an election is held along with the inter-relation of the election, delimitation and the role
of the Election Commission in Local Government Elections as laid down in our Constitution. This was considered by the court in the larger context of representative democracy, political rights, right to participate in the establishment of government, right to vote, political justice, electoral equality and free and fair elections. Touching all these issues and authoritatively laying down the law related to delimitation, the Lahore High Court ruled that provisions of the Punjab Local Governments Act, 2013 was inconsistent with the Constitution of Pakistan, 1973 for limiting the role of the ECP in delimitation matters.
Selected Passages:
“The process of delimitation has to ensure that the voting equality is not disturbed and the vote of one citizen must in no manner be less than the vote of another citizen. Other than population parity, geographical compactness, the homogeneity of interest of the community need to be factored in Setting the parameters of delimitation.
The process of delimitation has to ensure that the voting equality is not disturbed and the vote of one citizen must in no manner be less than the vote of another citizen. Other than population parity, geographical compactness, the homogeneity of interest of the community need to be factored in Setting the parameters of delimitation
The government in power according to the allegations levelled before us have tried to exploit the electoral independence and the right to vote of the people by gerrymandering and remapping of the Union Councils and Municipal Committees into Wards, in a manner that best suited their political interests. The veracity of these allegations need not detain us. Our role is to ensure that the constitutional mandate is obeyed and the electoral system envisaged by the Constitution is enforced. Professor Tribe puts in a word of caution: “Democracy,” he writes, “envisions rule by successive temporary majorities. The capacity to displace incumbents in favour of the representatives of a recently coalesced majority is, therefore, an essential attribute of the election system in a democratic republic. Consequently, both citizens and courts should be chary of efforts by government officials to control the very electoral system which is the primary check on their power. Few prospects are so antithetical to the notion of rule by the people as that of a temporary majority entrenching itself by cleverly manipulating the system through which the voters, in theory, can register their dissatisfaction by choosing new leadership.”
PLD 2014 Lahore 221